Har Sharan Verma Vs. State of U.P.
& ANR [1985] INSC 2 (10 January 1985)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) MADON, D.P.
CITATION: 1985 AIR 282 1985 SCR (2) 547 1985
SCC (2) 48 1985 SCALE (1)15
ACT:
Constitution of India, Article 164 and Article
173(a) (as amended by Constitution (Sixteenth) Amendment Act, (1963)- Effect of
amended Article 173(a)- A person not a member of State Legislature-Whether can
be appointed as a Minister in a State even after amendment of Article
173(a).Held: Yes
HEADNOTE:
Through this petition filed under Article 32
of the Constitution the petitioner prayed for the issue of a writ in the nature
of quo worranto to the respondent K.P.
Tewari who had been appointed in November,
1984 as a Minister of the Government of Uttar Pradesh under Article 164(1) of
the Constitution by the Governor of the State of Uttar Pradesh even though Shri
Tewari was not a member of either House of the State Legislature. The
petitioner contended (i) that in the judgment of Har Sharan Verma v. Shri
Tribhuvan Narain Singh, Chief Minister of U.P. and Anr., (AIR 1971 S.C. 1331)
where it had been held that the appointment of a person as Chief Minister could
not be challenged on the ground that he was not a member of the Legislature of
a State at the time of appointment, this Court had not considered the effect of
the amendment of Article 173 (a) of the Constitution by the Constitution
(Sixteenth) Amendment Act, 1963; (ii) that after the amendment of Article 173
of the Constitution by the Constitution (Sixteenth) Amendment Act, 1963 it was
not open to the Governor to appoint a person who was not a member of the
Legislature of the State as a Minister and that Article 164(4) of the
Constitution would only be applicable to a person who had been a Minister but
who ceased to be a member of the Legislature for some reason such as the
setting aside of his election in any election petition; and (iii) that the
debates of the Constituent Assembly suggested that a person should be a member
of the Legislature at the time of his being chosen as a Minister.
Dismissing the petition, ^
HELD: (I) By the Sixteenth Amendment clause
(a) of Article 173 of the Constitution is amended by the addition of a clause
which requires a candidate at an election to the Legislature to make and
subscribe before some person authorised in that behalf by the Election
Commission an oath or affirmation 548 according to the form set out for the
purpose in the Third Schedule to the Constitution. Earlier it was only after a
person was elected or nominated as a member of the Legislature of a State that
he was required by Article 188 of the Constitution to make and subscribe an
oath or affirmation before taking his seat as such member in the form mentioned
in the Third Schedule to the Constitution.
The above requirement has to be complied with
by an elected or nominated member of the State Legislature even after the
Sixteenth Amendment. [550H; 551A; E;H] (2) The object of introducing the
amendment in clause (a) of Article 173 of the Constitution was to provide that
not only before taking his seat shall a member of the Legislature take the oath
prescribed by the Third Schedule as required by Article 188 of the Constitution
but that even before standing for election, a candidate must take the same oath.
This is to ensure that only a person having allegiance to India shall be
eligible for membership of the Legislature. [552C-D] (3) Article 177, ensures
the implementation of the constitutional principle contained in clause (2) of
Article 164 of the Constitution which provides that the Council of Ministers
shall be collectively responsible to the Legislative Assembly of the State. A
Minister in a State under our Constitution discharges that responsibility by
virtue of the provisions contained in Article 177 of the Constitution which
enables him to participate in the proceedings of the Legislative Assembly even
though he may not be its member with the right to vote.[553F;G] (4) It does not
appear that the debates of the constituent Assembly suggest that a person shall
be a member of the Legislature at the time of his being chosen as a Minister.
An amendment was proposed to that effect in the Constituent Assembly to the
draft Constitution but was not accepted:
[553H; 554A-C] (5) The fear expressed by the
petitioner that a person who does not owe his allegiance to the Constitution
and is not willing to uphold the sovereignty and integrity of India would have
an opportunity to become a Minister if he is not required to become a member of
the Legislature after having made and subscribed an oath or affirmation as
prescribed by Article 173(a) of the Constitution is not well founded because
under clause (3) of Article 164 of the Constitution a Minister for a State is
required to take an oath of allegiance to the Constitution and to undertake to
uphold his office in the from prescribed in the Third Schedule.
[554C-E] (6) No material change has been
brought about by reason of the amendment of Article 173(a) of the Constitution
in the legal position that a person who is not a member of the State
Legislature may be appointed as a Minister subject, of course, to clause (4) of
Article 164 of the Constitution according to which a Minister who for any
period of six consecutive months is not a member of the Legislature of the
State shall at the expiration of that period cease to be a Minister. [554H;
555A] (7) By enacting Article 164(4) of the Constitution the makers of the
Constitution provided for a situation where a Minister may lose a seat in the
549 Legislature after appointment-as the result of an election petition for
example- A Or may not be a member when he is appointed.[555B-C] Har Sharan
Verma v. Shri Tribhuvan Narain Singh, Chief Minister of U.P. and Anr., A.I.R.
1971 S.C. 1331, Constitution Assembly Debates dated June 1 1949, Vol. VIII at
p. 521 and Har Sharan Verma v. Chandra Bhan Gupta & Ors., A.l.R. 1962
Allahabad 30], referred to.
ORIGINAL JURISDICTION: Writ Petition (Civil)
No. 17135 of 1984.
(Under Article 32 of the Constitution of
India) Har Sharan Verma: Petitioner in person.
The Judgment of the Court was delivered by
VENKATRAMIAH, J. The petitioner has filed this petition under Article 32 of the
Constitution praying for the issue of a writ in the nature of quo warranto to
the respondent K.P. Tewari who has been appointed in November, 1984 as a
Minister of the Government of Uttar Pradesh under Article 164 (1) of the
Constitution by the Governor of the State of Uttar Pradesh even though he (K.P.
Tewari) is not a member of either House of the State Legislature.
The petitioner who claims to be a votary of
pristine democracy and constitutionalism and crusader against any person who
has not been elected to the State Legislature assuming the office of a Minister
has argued this case in person with unabated enthusiasm. It is stated that this
is the ninth in the series of cases filed by him over a period of twenty-five
years in his attempt to prevent erosion of the Executive responsibility to the
Legislature.
In Har Sharan Verma v. Shri Tribhuvan Narain
Singh, Chief Minister of U.P. & Anr.(l) which had been filed by the
petitioner himself, a Constitution Bench of this Court has held that the
appointment of a person as Chief Minister cannot be challenged on the ground
that he was not a member of the Legislature of a State at the time of
appointment. The grievance of the petitioner against that Judgment is that this
Court had not considered the effect of the amendment of Article 173 (a) of the
constitution by the Constitution (Sixteenth) Amendment Act, 1963.
(1) A.I.R. 1971 S.C. 1331.
550 The petitioner contends more pointedly in
this case that after the amendment of Article 173 of the Constitution by the
Constitution (Sixteenth) Amendment Act, 1963, it is not open to the Governor to
appoint a person who is not a member of the Legislature of the State as a
Minister and that Article 164 (4) of the Constitution would only be applicable
to a person who has been a Minister but who ceases to be a member of the
Legislature for some reason such as the setting aside of his election in any
election petition.
Article 173 before it was amended by the
Constitution (Sixteenth) Amendment Act, 1963 read as:
"173. A person shall not be qualified to
be chosen to fill a seat in the Legislature of a State unless he- (a) is a
citizen of India;
(b) is, in the case of a seat in the
Legislative Assembly, not less than twenty-five years of age and, in the case
of a seat in the Legislative Council, not less than thirty years of age; and
(c) possesses such other qualifications as may be prescribed in that behalf by
or under any law made by Parliament." After its amendment clause (a) of
Article 173 of the Constitution now reads thus:
"173. A person shall not be Qualified to
be chosen to fill a seat in the Legislature of a State unless he- (a) is a
citizen of India, and makes and subscribes before some person authorised in
that behalf by the Election Commission an oath or affirmation according to the
form set out for the purpose in the Third Schedule;
..... .. .. ".
By the Sixteenth Amendment clause (a) of
Article 173 of the Constitution is amended by the addition of a clause which
requires a candidate at an election to the Legislature to make and subscribe
before some person authorised in that behalf by the Election Com 551 mission an
oath or affirmation according to the form set out for the A purpose in the
Third Schedule to the Constitution.
The said form of oath or affirmation which a
candidate at an election to the Legislature of State should make and subscribe
(which was also introduced by the Sixteenth Amendment in the Third Schedule to
the Constitution` reads:
"Form of oath or affirmation to be made
by a candidate for election to the Legislature of a State:- "I, A.B.,
having been nominated a candidate to fill a seat in the Legislative Assembly
(or Legislative Council), do swear in the name of God/solemnly affirm that I
will bear true faith and allegiance to the Constitution of India as by law
established and that I will uphold the sovereignty and integrity of
India." Earlier it was only after a person was elected or nominated as a
member of the Legislature of a State that he was required by Article 188 of the
Constitution to make and subscribe an oath or affirmation before taking his
seat as such member in the following form mentioned in the Third Schedule to
the Constitution:
"Form of oath or affirmation to be made
by a member of the Legislature of a State:- "I, A.B., having been elected
(or nominated) a member of the Legislative Assembly (or Legislative Council),do
swear in the name of God/solemnly affirm that I will bear true faith and
allegiance to the Constitution of India as by law established and that I will
faithfully discharge the duty upon which I am about to enter." The above
requirement has to be complied with by an elected or nominated member of the
State Legislature even after the Sixteenth Amendment. The form of oath or
affirmation to be made by a member of the Legislature under Article 188 of the
Constitution now reads thus:
552 "Form of oath or affirmation to be
made by a member of the Legislature of a State:- "I, A.B., having been
elected (or nominated) a member of the Legislative Assembly (or Legislative
Council), do swear in the name of God that I Will bear true faith solemnly
affirm and allegiance to the Constitution of India as by law established and
that l will uphold the sovereignty and integrity of India and that I will
faithfully discharge the duty upon which I am about to enter." The object
of introducing the amendment in clause (a) of Article 173 of the Constitution
was to provide that not only before taking his seat shall a member of the
Legislature take the oath prescribed by the Third Schedule as required by
Article 188 of the Constitution but that even before standing for election, a
candidate must take the same oath. This is to ensure that only a person having
allegiance to India shall be eligible for membership of the Legislature.
Article 163 (1) and Article 164 of the
Constitution which provide for the appointment of the Chief Minister and other
Ministers in a State read thus:
"163. (1) There shall be a Council of
Ministers with the Chief Minister at the head to aid and advise the Governor in
the exercise of this functions, except in so far as he is by or under this
Constitution required to exercise his functions or any of them in his
discretion.........
"164. (1) The Chief Minister shall be
appointed by the Governor and the other Ministers shall be appointed by the
Governor on the advice of the Chief Minister, and the Ministers shall hold
office during the pleasure of the Governor:
Provided that in the States of Bihar, Madhya
Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who
may in addition be in charge of the welfare of the Scheduled Castes and
backward classes or any other work.
(2) The Council of Ministers shall be
collectively responsible to the Legislative Assembly of the State.
553 (3) Before a Minister enters upon his
office, the Governor shall administer to him the oaths of office and of secracy
according to the forms set out for the purpose in the Third Schedule.
(4) A Minister who for any period of six
consecutive months is not a member of the Legislature of the State shall at the
expiration of that period cease to be a Minister.
(5) The salaries and allowances of Ministers
shall be such as the Legislature of the State may from time to time by law
determine and, until the Legislature of the State so determines, shall be as
specified in the Second Schedule." Clause (4) of Article 164 of the
Constitution says that a Minister (which includes a Chief Minister also) who
for any period of six consecutive months is not a member of the Legislature of
a State shall at the expiration of that period cease to be a Minister. By
virtue of Article 177 of the Constitution a Minister has a right to speak in,
and otherwise to take part in the proceedings of, the Legislative Assembly of
the State on in the case of a State having a Legislative Council, both Houses,
and to speak in, and otherwise to take part in the proceedings of, any Committee
of the Legislature of which he may be named member, but would not, by virtue of
that Article, be entitled to vote. Article 177, therefore, ensures the
implementation of the constitutional principle contained in clause (2) of
Article 164 the Constitution which provides that the Council of Ministers shall
be collectively responsible to the Legislative Assembly of the State.
Ministerial responsibility to the Legislative Assembly is the means of assuring
that the Government is in line with popular opinion, "It is also necessary
to emphasis" says Sir Ivor Jennings in his book entitled 'The British
Constitution' "that ministerial responsibility means only that a
politician must be able to answer in the House of Commons for every act of
administration." A Minister in a State under our Constitution discharges
that responsibility by virtue of the provisions contained in Article 177 of the
Constitution which enables him to participate in the proceedings of the
Legislative Assembly even though he may not be its member with the right to
vote. The petitioner, however, contends that the debates of the Constituent
Assembly suggest that a person shall be a member of the Legislature 554 at the
time of his being chosen as a Minister. It does not appear to be so. In fact, as
was pointed out in Har Sharan Verma v. Shri Tribhuvan Narain Singh, Chief
Minister of U.P. and Shri. (supra) an amendment was proposed in the Constituent
Assembly to the draft Constitution as follows:
"A Minister shall, at the time of being
chosen as such, be a member of the Legislative Assembly or the Legislative
Council of the States, as the case may be." That amendment was not
accepted. (See Constituent Assembly Debates dated June 1, 1949, Vol. VIII at p.
521).
The fear expressed by the petitioner that a
person who does not owe his allegiance to the Constitution and if not willing
to uphold the sovereignty and integrity of India would have an opportunity to
become a Minister if he is not required to become a member of the Legislature
after having made and subscribed an oath or affirmation as prescribed by
Article 173 (a) of the Constitution is not well founded because under clause
(3) of Article 164 of the Constitution a Minister for a State is required to
take an oath of allegiance to the Constitution and to undertake to uphold the
sovereignty and integrity of India before entering upon his office in the form
prescribed in the Third Schedule to the Constitution which reads thus:
"Form of oath, of office for a Minister
for a State:
"I,A.B., do swear in the name of God
"I,A.B., do that I will bear solemnly affirm true faith and allegiance to
the Constitution of India as by law established, that I will uphold the
sovereignty and integrity of India, that I will faithfully and conscientiously
discharge my duties as a Minister for the State of.. and that I will do right
to all manner of people in accordance with the Constitution and the law without
fear or favour, affection or ill will " It is thus seen that there is no
material change brought about by reason of the amendment of Article 173 (a) of
the Constitution in the legal position that a person who is not a member of the
State Legislature may be appointed as a Minister subject, of course, to clause
(4) of Article 164 of the Constitution which says that a Minis 555 ter who for
any period of six consecutive months is not a member of A the Legislature of
the State shall at the expiration of that period cease to be a Minister.
The decision of the Allahabad High Court in
Har Sharan Varma v. Chandra Bhan Gupta and Ors.(1) which was again a case filed
by the petitioner, on which the petitioner relies also lays down that by
enacting Article 16414) of the Constitution the makers of the Constitution
provided for a situation where a Minister may lose a seat in the Legislature
after appointment-as the result of an election petition for example-or may not
be a member when he is appointed.
We do not, therefore, find any merit in the
petition. The petition is accordingly dismissed.
A.P.J. Petition dismissed.
(1) A l.R 1962 Allahabad 301.
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