S.R. Chaudhuri
Vs. State of Punjab & Ors [2001] Insc 395 (17 August 2001)
Cji,
R.C. Lahoti & K.G. Balakrishnan Dr. A.S. Anand, Cji :
Respondent
No.2, Shri Tej Parkash Singh, was appointed as a Minister in the State of Punjab on the advice of the Chief Minister,
Sardar Harcharan Singh Barar on 9.9.1995. At the time of his appointment as a
Minister, he was not a Member of Legislative Assembly in Punjab. He failed to get himself elected
as a Member of the Legislature of the State of Punjab within a period of six months and submitted his resignation
from the council of Ministers on 8.3.1996. During the term of the same
Legislative Assembly, there was a change in the leadership of the ruling party.
Smt. Rajinder Kaur Bhattal, Respondent No.3, was, on her election as Leader of
the Ruling Party, appointed Chief Minister of the State of Punjab on 21.11.1996. Respondent No.2, who
had not been elected as a Member of the Legislature even till then, was once
again appointed as a Minister w.e.f. 23.11.1996. The Appellant filed a petition
seeking writ of quo warranto against Respondent No.2. It was stated in the
petition that appointment of Respondent No.2 for a second time during the term
of the same legislature, without being elected as a Member of the Legislature
was violative of constitutional provisions and, therefore, bad. The Division
Bench of the High Court vide order dated 3.12.1996 dismissed the writ petition
in limine. This appeal by special leave calls in question the order and
judgment of the High Court dismissing the writ petition in limine.
Since,
the meaningful question involved in this appeal revolves around the ambit and
scope of Article 164 and in particular of Article 164(4) of the Constitution of
India - let us first examine that Article :-
"164.
Other provisions as to Ministers. –
(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 Schedule Castes and backward classes or any other work.
(2)
The Council of Ministers shall be collectively responsible to the Legislative
Assembly of the State.
(3)
Before a Minister enters upon his office, the Governor shall administer to him
the oaths of office and of secrecy 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."
Under
Article 164(1), the Governor shall appoint the Chief Minister exercising his
own discretion, according to established practice and conventions. All other
Ministers are to be appointed by the Governor on the Advice of the Chief
Minister. In view of the provisions of Article 164(2) the Council of Ministers
shall all be collectively responsible to the Legislative Assembly of the State.
This provision, in a sense, indicates that members of the Council of Ministers
shall all be members of the Legislature, to which the Council of Ministers is
collectively responsible. This, however, is subject to an exception provided by
Article 164(4) to meet an extra-ordinary situation, where the Chief Minister
considers the inclusion of a particular person, who is not a member of the
Legislature, in the Council of Ministers necessary. To take care of such a situation,
Article 164(4) provides that if a non-member is appointed a Minister, he would
cease to be a Minister unless in a short period of six consecutive months from
the date of his appointment he gets elected to the Legislature.
Article
164(4) can in fact trace its lineage to Section 10(2) of the Government of
India Act, 1935 which reads:
10(2).
"A minister who for any period of six consecutive months is not a member
of either Chamber of the Federal Legislature shall at the expiration of that
period cease to be a minister." In Prof. C.L. Anand's book
"Constitutional Law and History of Government of India, Government of
India Act, 1935 and the Constitution of India" (Seventh Edition, 1992)
referring to the Parliamentary Debates on the enactment of clause ( 2 ) of
Section 10 of Government of India Act, 1935, the author says:
"Clause(2).-This
clause follows the recent Constitutions of Australia and South Africa, but it
is not in the Canadian Constitution, and is no part of the English
Constitution. As a matter of practice, however, even in England appointments are not made from
outside Parliament except incase of some national emergency such as war. While
the law in England does not require that a Minister
must be a member of Parliament, there is a strong convention to the effect that
a Minister who has not a seat in Parliament must get one, the reason being the
advantage of the interplay between the Executive and the Legislature.
An
amendment was moved by Sir Charles Oman to leave out clause (2) of Section 10
(supra). Viscount Wolmer referred to the difficulties which made the Amendment
(provision) desirable, such as the occasional practical difficulty in forming a
suitable Ministry without breaking the normal practice, and emphasised the
advisability of securing that elasticity in the choice of Ministers which
exists under an unwritten Constitution. It was also stated that the objection
to omission of the clause could not be serious in view of the fact that members
of the Federal Assembly would be returned by indirect election. The Secretary
of State opposed the Amendment on the grounds, firstly, that it was contrary to
public opinion in India which regarded it as "the thin
edge of the wedge for re-introducing the official block," and, secondly,
all Governments in India thought that the proposal would not
be acceptable to the Ministries in India. Besides the object aimed at could be secured by the Governor-General
nominating the desired person as a member of the Upper Chamber if he failed to
obtain within six months an elected seat. In reply to the view taken that
members of the Federal Assembly would be returned by indirect election and,
therefore, would not necessarily be representative of public opinion, it was
stated that, nevertheless, it was on the hole more democratic to select
Ministers form such persons than to nominate them from outside the Legislature.
The Amendment was negatived." Before proceeding to deal with the
interpretation of the Article and consideration of various precedents, it would
be useful to take note of the debates of the Constituent Assembly during the
enactment of Article 164(4).
Article
144(3) of the Draft Constitution which corresponds to Article 164(4) of the
Constitution read:
"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." During the debate on this Draft Article, Mr. Mohd. Tahir, M.P.
proposed the following amendment: - "That for clause (3) of article 144,
the following be substituted:
(3) A
Minister shall, at the time of his being chosen as such be a member of the
Legislative Assembly or Legislative Council of the State as the case may
be." Speaking in support of the proposed amendment, Mr. Tahir said in the
Constituent Assembly:
"This
provision appears that it does not fit with the spirit of democracy. This is a
provision which was also provided in the Government of India Act of 1935 and of
course those days were the days of Imperialism and fortunately those days have
gone. This was then provided because if a Governor finds his choice in someone
to appoint as Minister and fortunately or unfortunately if that man is not
elected by the people of the country, then that man used to be appointed as
Minister through the backdoor as has been provided in the Constitution and in
1935 Act. But now the people of the States will elect members of the
Legislative Assembly and certainly we should think they will send the best men
of the States to be their representatives in the Council or Legislative
Assembly. Therefore I do not find any reason why a man who till then was not
elected by the people of the States and which means that, that man was not
liked by the people of the States to be their representative in the Legislative
Assembly or the Council, then Sir, why that man is to be appointed as the
Minister." Dr. Ambedkar opposing the amendment replied :
"Now,
with regard to the first point, namely, that no person shall be entitled to be
appointed a Minister unless he is at the time of his appointment an elected
member of the House, I think it forgets to take into consideration certain
important matters which cannot be overlooked. First is this, - it is perfectly
possible to imagine that a person who is otherwise competent to hold the post
of a Minister has been defeated in a constituency for some reason which,
although it may be perfectly good, might have annoyed the constituency and he
might have incurred the displeasure of that particular constituency. It is not
a reason why a member so competent as that should be not permitted to be
appointed a member of the Cabinet on the assumption that he shall be able to
get himself elected either from the same constituency or from another
constituency. After all the privilege that is permitted is a privilege that
extends only for six months. It does not confer a right to that individual to
sit in the House without being elected at all. My second submission is this,
that the fact that a nominated Minister is a member of the Cabinet, does not either
violate the principle of collective responsibility nor does it violate the
principle of confidence, because if he is a member of the Cabinet, if he is
prepared to accept the policy of the Cabinet, stands part of the Cabinet and
resigns with the Cabinet, when he ceases to have the confidence of the House,
his membership of the Cabinet does not in any way cause any inconvenience or
breach of the fundamental principles on which parliamentary government is
based. " (Emphasis supplied) After the debate the proposed amendment was negatived
and Article 144(3) was adopted.
The
ambit and scope of Article 164(4) came up for consideration before a
Constitution Bench of this Court in Har Sharan Verma v. Shri Tribhuvan Narain
Singh, Chief Minister, U.P. and another, 1971(1) SCC 616. The issue arose in
connection with the appointment of Shri T.N. Singh, who was not a Member of
either House of Legislature of the State of Uttar Pradesh, as Chief Minister of Uttar Pradesh. The Constitution Bench
referred to the position as prevailing in England. It was observed that invariably all Ministers must be members of the
Parliament but if in some exceptional case, a Minister, is not a member of the
Parliament, he can continue to be a Minister for a brief period during which he
must get elected in order to continue as a Minister. This Court upholding the
judgment of the High Court, rejected the challenge to the appointment of Shri
T.N. Singh as Chief Minister in view of Article 164(4) of the Constitution. The
Court opined that the Governor has the discretion to appoint, as a Chief
Minister, a person, who is not a member of the legislature at the time of his
appointment but the Chief Minister is required, with a view to continue in
office as a Chief Minister, get himself elected to the legislature within a
period of six consecutive months from the date of his appointment.
The
issue was once again raised by the same writ petitioner and was considered by a
Division Bench of this Court in Har Sharan Verma v. State of U.P. and another,
(1985) 2 SCC 48. The writ petitioner argued that a Governor cannot appoint a
person, who is not a Member of the Legislature, as a Minister under Article
164(1). According to the writ petitioner Article 164(4) of the Constitution in
terms 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 or the other such
as the setting aside of his election in any election petition".
Sustenance, for this argument was sought from the provisions of amended Article
173(a) which provides :
"Article
173. Qualification for membership of the State Legislature.- 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;
Relying
upon the Constitution Bench judgment in Har Sharan Verma v. Shri Tribhuvan Narain
Singh (supra), the Court opined:
"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 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." "A Minister who for any period of six
consecutive months is not a member of either House of Parliament shall at the
expiration of that period cease to be a Member." And Article 88, which
provides:
"Every
Member and the Attorney-General of India shall have the right to speak in, and
otherwise to take part in the proceedings of, either House, any joint sitting
of the Houses, and any committee of Parliament of which he may be named a
member, but shall not by virtue of this article be entitled to vote."
opined:
"The
combined affect of these two articles is that a person not being a Member of
either House of Parliament can be a Minister up to a period of six months.
Though he would not have any right to vote, he would be entitled to participate
in the proceedings thereof. The petitioner admits that in the thirty-seven
years of constitutional regime in this country there have been several
instances where a person has held the office as Minister either at the Centre
or in the State (there are corresponding provisions for the State), not being a
member of the appropriate legislature at the time of appointment."
(Emphasis ours) Thus, this Court once again held that a person, not being a
Member of either House of Legislature could be appointed a Minister, but he
could continue as a Minister for a period of six consecutive months only during
which period he should get himself elected to the Legislature or else he must
cease to be a Minister after expiry of that period.
Shri
H.D. Deve Gowda, who was not a Member of either House of Parliament was
appointed as the Prime Minister of India. His appointment was put in issue in
S.P. Anand, Indore v. H.D. Deve Gowda and others, (1996) 6 SCC 734. After
noticing various provisions of the Constitution, this Court while upholding his
appointment observed:
"A
Constitution Bench of this Court had occasion to consider whether a person who
is not a member of either House of the State Legislature could be appointed a
Minister of State and this question was answered in the affirmative on a true
interpretation of Articles 163 and 164 of the Constitution which, in material
particulars, correspond to Articles 74 and 75 bearing on the question of
appointment of the Prime Minister...". and went on to say:
"On
a plain reading of Article 75(5) it is obvious that the Constitution-makers
desired to permit a person who was not a member of either House of Parliament
to be appointed a Minister for a period of six consecutive months and if during
the said period he was not elected to either House of Parliament, he would
cease to be a Minister...".
(Emphasis
ours) The Bench also repelled the argument that if a non-Member of the House is
chosen as a Prime Minister, it could be against national interest and the
country would be running a great risk. It was observed:
"...Therefore,
even though a Prime Minister is not a member of either House of Parliament,
once he is appointed he becomes answerable to the House and so also his
Ministers and the principle of collective responsibility governs the democratic
process. Even if a person is not a member of the House, if he has the support
and confidence of the House, he can be chosen to head the Council of Ministers
without violating the norms of democracy and the requirement of being
accountable to the House would ensure the smooth functioning of the democratic
process. We, therefore, find it difficult to subscribe to the petitioner's
contention that if a person who is not a member of the House is chosen as Prime
Minister, national interest would be jeopardised or that we would be running a
great risk. The English convention that the Prime Minister should be a Member
of either House, preferably House of Commons, is not our constitutional scheme
since our Constitution clearly permits a non-member to be appointed a Chief
Minister or a Prime Minister for a short duration of six months...".
Thus,
we find that this Court, including its Constitution Bench, has consistently
taken the view on an interpretation of Article 163, Article 164(1) and Article
164(4) that a person who is not a member of the Legislature, may be appointed a
Minister for a short period, but if during the period of six consecutive months
he is not elected to the Legislature, he would cease to be a Minister at the
expiry of that period.
The absence
of the expression "from amongst members of the legislature" in
Article 164 (1) is indicative of the position that whereas under that provision
a non-legislator can be appointed as a Chief Minister or a Minister but that
appointment would be governed by Article 164(4), which places a restriction on
such a non-member to continue as a Minister or the Chief Minister, as the case
may be, unless he can get himself elected to the Legislature within the period
of six consecutive months, from the date of his appointment. Article 164(4) is,
therefore, not a source of power or an enabling provision for appointment of a
non-legislator as a Minister even for a short duration. It is actually in the
nature of a disqualification or restriction for a non-member, who has been
appointed as a Chief Minister or a Minister, as the case may be, to continue in
office without getting himself elected within a period of six consecutive
months.
It is
not the case of the appellant that respondent No.2 Shri Tej Prakash Singh
suffered from any constitutional or statutory disqualification to contest an
election on the date of his first appointment as a Minister or even on the date
of his re-appointment as a Minister. The challenge is confined to the issue of
re-appointment of the respondent, without getting elected within six
consecutive months of his first appointment. In this view of the matter, we
have declined an invitation of learned counsel for the appellant to express our
opinion on the question whether a non-legislator can be appointed as a Minster,
if on the date of such appointment, he suffers from a constitutional or
statutory disqualification to contest the election within the next six
consecutive months. We are not expressing our opinion on the issue, as it is
not directly involved in the present case and the settled practice of this
Court is not to express opinion on issues which do not essentially arise in a
case under consideration.
The
issue before us, however, is somewhat different. The issue is : can a
non-member, who fails to get elected during the period of six consecutive
months, after he is appointed as a Minister or while a Minister has ceased to
be a legislator, be reappointed as a Minister, without being elected to the
Legislature after the expiry of the period of six consecutive months ? This
issue was not considered in either of the four cases referred to above - there
is no other decided case dealing with the issue brought to our notice either.
With a view to consider the issue, it would, therefore, be useful to consider
the constitutional scheme governing a democratic parliamentary form of
Government and interpret Article 164 (1) and 164(4) in that light.
Parliamentary
democracy generally envisages
(i) representation
of the people,
(ii) responsible
government and
(iii) accountability
of the Council of Ministers to the Legislature.
The
essence of this is to draw a direct line of authority from the people through
the Legislature to the Executive. The character and content of parliamentary
democracy in the ultimate analysis depends upon the quality of persons who man
the Legislature as representative of the people. It is said that
"elections are the barometer of democracy and the contestants the lifeline
of the parliamentary system and its set-up".
India has to a large measure adopted Westminster form of Government. This position
was recognised in Shamsher Singh & Anr. vs. State of Punjab, [1975] 1
S.C.R. 814, when Justice Krishna Iyer observed:
"Not
the Potomac, but the Thames fertilizes the flow of the Yamuna, if we may adopt
a riverine imagery. In this thesis, we are fortified by the precedent of this
Court, strengthened by Constituent Assembly proceedings and reinforced by the
actual working of the organs involved for about a 'silver jubilee span of
time'." In the Westminster system, it is an established convention that
Parliament maintains its position as controller of the executive. By a well
settled convention, it is the person who can rely on support of a majority in
the House of Commons, who forms a government and is appointed as the Prime
Minister. Generally speaking he and his Ministers must invariably all be
Members of Parliament (House of Lords or House of Commons) and they are
answerable to it for their actions and policies. Appointment of a non-member as
a Minister is a rare exception and if it happens it is for a short duration.
Either the individual concerned gets elected or is conferred life peerage.
In Halsbury's
Laws of England (Fourth Edition) Volume 8 Para 819) dealing with British
conventions it is observed:
"819.
The paramount convention is that the Sovereign must act on the advice tendered
to her by her ministers, in particular the Prime Minister. She must appoint as
Prime Minister that member of the House of Commons who can acquire the confidence
of the House, and must appoint such persons to be members of the ministry and
Cabinet as he recommends. ... ... .... .... .... ... .... ... ...
Since
the Sovereign must always act upon ministerial advice, ministers are always
politically responsible to the House of Commons for their acts, even if done in
her name. Their responsibility is both personal and collective. ... .... ....
....
.... ..... ..... ...... ....
....
.... ..... ..... ...... ....
.....
.... ..... ..... ...... ....
In para
1006 of Volume 34 of Halsbury's Laws of England (Fourth Edition) it is recorded
:
"1006.
Effect of the presence of ministers in Parliament. In addition to the methods
of parliamentary control, the practice and procedure of both Houses ensures
that the action of the executive is always open to the criticism of Parliament.
Ministers of the Crown cannot indefinitely remain in office without being
members of either the House of Lords or the House of Commons. In either House
it is permissible for members to address questions to ministers with regard to
the administration of their departments, and in both Houses motions may be made
reflecting on the conduct of a particular minister or of the government as a
whole." Sir Ivor Jennings in his treatise on Cabinet Government, (Third
edition page 60), while dealing with the convention relating to formation of
Government in England, after a Prime Minister has been appointed says:
"It
is well-settled convention that these minister should be either peers or
members of the House of Commons. There have been occasional exceptions. Mr.
Gladstone once held office out of Parliament for nine months. The Scottish law
officers sometimes, as in 1923 and 1924, are not in Parliament. General Smuts
was minister without portfolio and a member of the War Cabinet from 1916 until
1918. Mr. Ramsay MacDonald and Mr. Malcolm MacDonald were members of the
Cabinet though not in Parliament from the general election of November 1935
until early in 1936." According to Wade and Bradley, "Constitutional
and Administrative Law", page 268:
"It
is the convention that ministerial officer-holders should be members of one or
other House of Parliament. Such membership is essential to the maintenance of
ministerial responsibility............When a Prime Minister appoints to
ministerial office someone who is not already in Parliament, a life peerage is
usually conferred on him.
Canada
as well as Australia also follow parliamentary system of government of Westminister
style.
In his
treatise on the Constitutional Law of Canada , (4th Edition), Peter W. Hogg,
Professor of Law, Osgoode Hall Law School, York University (page 243),
discusses the characteristics of a responsible Government in a parliamentary
system and the appointment of the Prime Minister and other Ministers of his cabinet.
He says:
"The
narrative must start with an exercise by the Governor General of one of his
exceptional reserve powers or personal prerogatives. In the formation of a
government it is the Governor General's duty to select the Prime Minister. He
must select a person who can form a government which will enjoy the confidence
of the House of Commons. For reasons which will be explained later, the
Governor General rarely has any real choice as to whom to appoint: he must
appoint the parliamentary leader of the political party which has a majority of
seats in the House of Commons. But it is still accurate to describe the
Governor General's discretion as his own, because unlike nearly all of his
other decisions it is not made upon ministerial advice.
When
the Prime Minister has been appointed, he selects the other ministers, and
advises the Governor General to appoint them. With respect to these
appointments, the Governor General reverts to his normal non-discretionary role
and is obliged by convention to make the appointments advised by the Prime
Minister. If the Prime Minister later wishes to make changes in the ministry,
as by moving a minister from one portfolio to another, or by appointing a new
minister, or by removing a minister, then the Governor General will take
whatever action is advised by the Prime Minister, including if necessary the
dismissal of a minister who has refused his Prime Minister's request to resign.
It is
basic to the system of responsible government that the Prime Minister and all
the other ministers be members of parliament. Occasionally a person who is not
a member of parliament is appointed as a minister, but then he must quickly be
elected to Parliament. If he fails to win election, then he must resign (or be
dismissed) from the ministry. The usual practice when a non-member of
parliament is appointed to the ministry is that a member of the Prime
Minister's political party will be induced to resign from a 'safe seat' in
Parliament, which will precipitate a by-election in which the minister will be
the candidate from the Prime Minister's party." ( Emphasis ours).
Clause
51 of the Australian Constitution provides "a responsible Minister of the
Crown shall not hold office for a longer period than three months unless he is
or becomes a members of the Council or the Assembly". Dealing with
conventions being followed in Australia, Mr. Peter Hanks, in his commentary
"Australian Constitutional Law"; (Second Edition) says :
"In
every State we can confidently predict that ministers will be appointed from
amongst the current members of parliament. Indeed the South Australian and
Victorian legislation provide that ministers must be (or become within three
months) members of one of the houses of parliament." The following
observations of the High Court of Australia in State of New South Wales vs.
Commonwealth of Australia and another, 108 A.L.R. 577, are also educative :
"The
Constitution none the less brought into existence a system of representative
government in which those who exercise legislative and executive power are
directly chosen by the people. ...The very concept of representative government
and representative democracy signifies government by the people through their
representatives. Translated into constitutional terms, it denotes that the
sovereign power which resides in the people is exercised on their behalf by
their representatives. The point is that the representatives who are members of
Parliament and Ministers of State are not only chosen by the people but
exercise their legislative and executive powers as representatives of the
people. And in the exercise of those powers the representatives of necessity
are accountable to the people for what they do and have a responsibility to
take account of the views of the people on whose behalf they act." Thus,
we find from the positions prevailing in England, Australia and Canada that
essentials of a system of representative government, like the one we have in
our country, are that invariably all Ministers are chosen out of the members of
the Legislature and only in rare - cases, a non-member is appointed as a
Minister, who must get himself returned to the legislature by direct or
indirect election within a short period. He cannot be permitted to continue in
office indefinitely unless he gets elected in the meanwhile. The scheme of
Article 164 of the Constitution is no different, except that the period of
grace during which the non-member may get elected has been fixed as "six
consecutive months", from the date of his appointment. (In Canada he must
get elected quickly and in Australia within three months). The framers of the
Constitution did not visualise that a non-legislator can be repeatedly
appointed as a Minister for a turn of six months each time, without getting
elected because such a course strikes at the very root of parliamentary
democracy. According to learned counsel for the respondent, there is no bar to
this course being adopted on the 'plain language of the Article', which does
not 'expressly' prohibit re-appointment of the minister, without being elected,
even repeatedly, during the term of the same Legislative Assembly. We cannot
persuade ourselves to agree.
Constitutional
provisions are required to be understood and interpreted with an object
oriented approach. A Constitution must not be construed in a narrow and
pedantic sense. The words used may be general in terms but, their full import
and true meaning, has to be appreciated considering the true context in which
the same are used and the purpose which they seek to achieve. Debates in the
Constituent Assembly referred to in an earlier part of this judgment clearly
indicates that non-member's inclusion in the cabinet was considered to be a
'privilege' that extends only for six months', during which period the member
must get elected otherwise he would cease to be a Minister. It is a settled
position that debates in the Constituent Assembly may be relied upon as an aid
to interpret a constitutional provision because it is the function of the Court
to find out the intention of the framers of the Constitution. We must remember
that a Constitution is not just a document in solemn form, but a living
framework for the Government of the people exhibiting a sufficient degree of
cohesion and its successful working depends upon the democratic spirit
underlying it being respected in letter and in spirit. The debates clearly
indicate the 'privilege' to extend "only" for six months.
The
very concept of responsible Government and representative democracy signifies
Government by the People. In constitutional terms, it denotes that the
sovereign power which resides in the people is exercised on their behalf by
their chosen representatives and for exercise of those powers, the
representatives are necessarily accountable to the people for what they do. The
Members of the Legislature, thus, must owe their power directly or indirectly
to the people. The Members of the State Assemblies like Lok Sabha trace their
power directly as elected by the people while the Members of the Council of
State like Rajya Sabha owe it to the people indirectly since they are chosen by
the representative of the people. The Council of Minister of which a Chief
Minister is head in the State and on whose aid and advice the Governor has to
act, must, therefore, owe their power to the people directly or indirectly.
The
sequence and scheme of Article 164, which we have referred to in an earlier
part of our order, clearly suggests that ideally, every minister must be a
member of the legislature at the time of his appointment, though in exceptional
cases, a non-member may be given a ministerial berth or permitted to continue
as a Minister, on ceasing to be a member, for a short period of six consecutive
months only to enable him to get elected to the Legislature in the meanwhile.
As a Member of the Council of Ministers, every Minister is collectively
responsible to the Legislative Assembly. A Council of Ministers appointed
during the term of a legislative assembly would continue in office so long as
they continue to enjoy the confidence of the legislative assembly. A person
appointed as a Minister, on the advice of the Chief Minister, who is not a
member of the legislature, with a view to continue as a Minister must,
therefore, get elected during a short period of six consecutive months after
his appointment, during the term of that legislative assembly and if he fails
to do so, he must cease to be a Minister. Reappointment of such a person, who
fails to get elected as a member within the period of grace of six consecutive
months, would not only disrupt the sequence and scheme of Article 164 but would
also defeat and subvert the basic principle of representative and responsible
Government. Framers of the Constitution by prescribing the time limit of
"six consecutive months" during which a non-legislator Minister must
get elected to the legislature clearly intended that a non-legislator can not
be permitted to remain a minister for any period beyond six consecutive months,
without getting elected in the meanwhile. Resignation by the individual
concerned before the expiry of the period of six consecutive months, not
followed by his election to the legislature, would not permit him to be
appointed a Minister once again without getting elected to the legislature
during the term of the legislative assembly. The "privilege" of
continuing as a Minister for "six months" without being an elected
member is only a one time slot for the individual concerned during the term of
the concerned legislative assembly. It exhausts itself if the individual is unable
to get himself elected within the period of grace of "six consecutive
months". The privilege is personal for the concerned individual. It is, he
who must cease to be a Minister, if he does not get elected during the period
of six months. The 'privilege' is not of the Chief Minister on whose advice the
individual is appointed. Therefore, it is not permissible for different Chief
Ministers, to appoint the same individual as a Minister, without him getting
elected, during the term of the same assembly. The individual must cease to be
a Minister, if during a period of six consecutive months, starting with his
initial appointment, he is not elected to the assembly. The change of a Chief
Minister, during the term of the same assembly would, therefore, be of no
consequence so far as the individual is concerned. To permit the individual to
be reappointed during the term of the same legislative assembly, without
getting elected during the period of six consecutive months, would be
subversion of parliamentary democracy. Since Article 164(4) provides a
restriction for a non-legislator Minister to continue in office, beyond a
period of six consecutive months, without being elected, it clearly
demonstrates that the concerned individual appointed as a Minister under Article
164(1) without being a member of the Legislature must cease to be a Minister
unless elected within six consecutive months. Re-appointing that individual
without his getting elected, would, therefore, be an abuse of Constitutional
provisions and subversive of constitutional guarantees. Every Minister must
draw his authority, directly or indirectly, from the political sovereign - the
Electorate. Even a most liberal interpretation of Article 164(4) would show
that when a person is appointed as a Minister, who at that time is not a member
of the legislature, he becomes a Minister on clear constitutional terms that he
shall continue as a Minister for not more than six consecutive months, unless
he is able to get elected in the meanwhile. To construe this provision as
permitting repeated appointments of that individual as a Minister, without
getting elected in the meanwhile, would not only make Article 164(4) nugatory
but would also be inconsistent with the basic premise underlying Article 164.
It was not the intention of the Founding Fathers that a person could continue
to be a Minister without being duly elected, by repeated appointments, each
time for a period of six consecutive months. If this were permitted, a
non-legislator could by repeated appointments remain a Minister even for the
entire term of the Assembly - a position wholly unacceptable in any
parliamentary system of government. Such a course would be contrary to the
basic principles of democracy, an essential feature of our constitution. The intention
of the framers of the constitution to restrict such appointment for a short
period of six consecutive months, cannot be permitted to be frustrated through
manipulation of "reappointment".
Framers
of the Constitution have used the expression "six consecutive
months", which implies that the period of six months must run continuously
and not even intermittently. It would commence from the time a non-legislator
is either appointed as a Minister or a Minister who becomes a non-legislator,
is allowed to continue as such, and comes to an end at the expiry of that
period. The use of the expression "consecutive" is significant. It
cannot be defeated by interpreting Article 164(4) as permitting appointment
even for a total period of six months, during the term of a legislative
assembly, let alone, that the appointment of such a non-legislator as a
minister can be for six months "at a time", without his getting
mandate from the electorate in the meanwhile.
As
already noticed Article 164(4) in terms provides only a disqualification or a
restriction for a Minister, who for any period of six consecutive months, is
not a Member of the Legislature of the State to continue as such. It expressly
provides that he shall on the expiration of that period cease to be a Minister
unless he gets elected during that period by direct or indirect election. We
must also bear in mind that no right is conferred on the concerned non-member
Minister even during the period of 'six months' , when he is permitted to
continue in office, to vote in the House. The privilege to vote in the House is
conferred only on Members of the House of the Legislature of a State (Article
189). It does not extend to non-elected ministers He may address the House but
he cannot vote as an MLA. None of the powers or privileges of an MLA extend to
that individual. Though under Article 177, the individual shall have a right to
speak and to otherwise take part in the proceedings of the Legislative
Assembly, he does not carry with him the usual "free speech"
legislative immunity as provided by Article 194(2). The individual cannot draw
any of the benefits of an MLA without getting elected. All these disabilities
also clearly go to suggest that 'six months clause' in Article 164(4) cannot be
permitted to be repeatedly used for the same individual without his getting
elected in the meanwhile. It would be too superficial to say that even though
the individual Minister is a person who cannot even win an election by direct
or indirect means, he should be permitted to continue as a Minister for a
period beyond six months, without being elected at all and represent the
electorate which has not even returned him!! It would be subversive of the
principle of representative government and undemocratic. It would be perversion
of the Constitution and even a fraud on it.
Obligation
of the judiciary is to administer justice according to law but the law must be
one that commands legitimacy with the people and legitimacy of the law itself
would depend upon whether it accords with justice. Articles 164(1) and 164(4)
have therefore, to be so construed that they further the principles of a
representative and responsible government. The legitimacy of the law would be
to ensure that the role of the political sovereign - the people - is not undermined.
All Ministers must always owe their power, directly or indirectly, to them,
except for the short duration as envisaged by Article 164(4). The
interpretation, therefore, must be such that expectation of the Founding
Fathers and constitutionalists are fulfilled rather then frustrated. The former
Chief Justice of India, Shri M.N. Venkatachaliah in his Foreword to the
"Constitution of Jammu & Kashmir - Its Development and
Comments" (Third Edition - 1998) said:
"The
mere existence of a Constitution, by itself, does not ensure constitutionalism.
What are important are the political traditions of the people and its spirit
and determination to workout its constitutional salvation through the chosen
system of its political organisation." India is a Democratic Republic. Its chosen system of political organisation
is reflected in The Preamble to the Constitution, which indicates the source
from which the Constitution comes, viz., "WE, THE PEOPLE OF INDIA".
By permitting a non-legislator Minister to be reappointed, without getting
elected within the period prescribed by Article 164(4), would amount to
ignoring the electorate in having its say as to who should represent it - a
position which is wholly unacceptable. The seductive temptations to cling to
office regardless of constitutional restraint must be totally eschewed. Will of
the people cannot be permitted to be subordinated to political expediency of
the Prime Minister or the Chief Minister as the case may be, to have in his
cabinet a non-legislator as a Minister for an indefinite period by repeated
reappointments without the individual seeking popular mandate of the electorate.
Chief
Ministers or the Governors, as the case may be, must for ever remain conscious
of their constitutional obligations and not sacrifice either political
responsibility or parliamentary conventions at the alter of "political
expediency". Prof.. B.O. Nwabueze in his book "Constitutionalism in
the Emergent States" (1973 Edition - page 139), almost thirty years ago warned
:
"Experience
has amply demonstrated that the greatest danger to constitutional government in
emergent states arises from the human factor in politics, from the capacity of
politicians to distort and vitiate whatever governmental forms may be devised.
Institutional forms are of course important, since they can guide for better or
for worse the behaviour of the individuals who operate them. Yet, however
carefully the institutional forms may have been constructed, in the final
analysis, much more will turn upon the actual behaviour of these individuals -
upon their willingness to observe the rules, upon a statesmanlike acceptance
that the integrity of the whole governmental framework and the regularity of
its procedures should transcend any personal aggrandizement. The successful
working of any constitution depends upon what has aptly been called the
'democratic spirit', that is, a spirit of fair play, of self-restraint and of
mutual accommodation of differing interests and opinions. There can be no
constitutional government unless the wielders of power are prepared to observe
the limits upon governmental powers." (Emphasis ours) Prof. Nwabueze's
warning has great relevance today in the context under our consideration. For
parliamentary democracy to evolve and grow certain principles and policies of
public ethics must form its functioning base. Actions such as in the present
case, pose grave danger to foundations and principles of constitutionalism and
the same must be warded off by developing right attitude towards constitutional
provisions. Constitutional restraints must not be ignored or bypassed if found
inconvenient or bent to suit "political expediency". We should not
allow erosion of principles of constitutionalism.
We
are, therefore, of the considered opinion that it would be subverting the
Constitution to permit an individual, who is not a member of the Legislature,
to be appointed a Minister repeatedly for a term of "six consecutive
months", without him getting himself elected in the meanwhile. The
practice would be clearly derogatory to the constitutional scheme, improper,
undemocratic and invalid. Article 164(4) is at best only in the nature of an
exception to the normal rule of only members of the Legislature being
Ministers, restricted to a short period of six consecutive months. This
exception is essentially required to be used to meet very extraordinary
situation and must be strictly construed and sparingly used. The clear mandate
of Article 164(4) that if an individual concerned is not able to get elected to
the legislature within the grace period of six consecutive months, he shall
cease to be a Minister, cannot be allowed to be frustrated by giving a gap of
few days and reappointing the individual as a Minister, without his securing
confidence of the electorate in the meanwhile. Democratic process which lies at
the core of our Constitution schemes cannot be permitted to be flouted in this
manner.
It may
be of some interest to notice certain provisions of the Constitution of Jammu
& Kashmir, 1957. Section 36 of the J & K Constitution corresponds to
Article 164(1) of the Constitution of India, with the difference that the
expression "the Minister shall hold office during the pleasure of the
Governor" is missing from Section 36. This expression has, however, been
separately incorporated in Section 39, which provides that all Ministers and
Deputy Ministers shall hold office during the pleasure of the Governor. Section
37(2) corresponds to Article 164(4) of the Constitution. Section 38 of the J
& K Constitution is, however, a provision which has no corresponding
provision in the Constitution of India. This section reads thus:
"38-
Deputy Ministers. - The Governor may on the advice of the Chief Minister
appoint from amongst the members of either House of Legislature such number of
Deputy Ministers as may be necessary." If constitutional provisions of
Article 164(1) and 164(4) are permitted to be perverted or distorted in the
manner as was done in the present case, Section 38 of the Constitution of Jammu
& Kashmir may require some serious consideration by the Parliament, for
adoption, notwithstanding the statement of Dr. Ambedkar (supra) against
incorporation of such a restriction either in Article 164(1) or in Article
75(1) From the above discussion, it follows that reappointment of Shri Tej Parkash
Singh, respondent, as a Minister with effect from 23.11.1996, after his
resignation from the Council of Ministers on 8.3.1996, during the term of the
same Legislative Assembly, without getting elected in the meanwhile was
improper, undemocratic, invalid and unconstitutional. His reappointment is
accordingly set aside though at this point of time, it is of no consequence. We
have dealt with the issue because of its importance. The Division Bench of the
High Court fell in error in dismissing the Writ Petition filed by the appellant
in limine.
Since
we have held that reappointment of Shri Tej Parkash Singh as a Minister in the
State of Punjab with effect from 23.11.1996 was invalid and unconstitutional,
we consider it appropriate to observe, with a view to avoid reopening of
settled matters, that this judgment shall not render any order made or action
taken by Shri Tej Parkash Singh, as a Minister, after his reappointment to the
Council of Ministers, as bad or invalid only on account of his reappointment as
a Minister having been found to be invalid. This appeal, therefore, succeeds
and is allowed in the terms indicated above with cost.
...................CJI
......................J
( R.C.
LAHOTI ) ......................J
( K.G.
BALAKRISHNAN ) August 17, 2001.
Back
Pages: 1 2
