Ashok Pandey Vs. K. Mayawati and Ors  Insc 691 (13 June 2007)
Dr. ARIJIT PASAYAT & P.P. NAOLEKAR
Dr. ARIJIT PASAYAT, J
1. This petition is filed under Article 32 of the Constitution of India,
1950 (in short the Constitution) seeking a writ of quo warranto
against respondent Nos.1 and 2. Essentially, the grievance is that respondent
Nos. 1 and 2 are not qualified to be appointed as Chief Minister and Minister
respectively as they were members of the Rajya Sabha and thus disqualified
under Article 164(4) read with Article 164(1) of the Constitution. The basic
stand is that since they were members of the Rajya Sabha the requirement of
their being elected to the State Legislative Assembly within a period of 6
months does not apply to them as they are already legislators of the Rajya
2. While appreciating the stand we shall take note of the provisions on
which emphasis is laid by the petitioner who appears in person.
3. Article 164 (1) and (4) read as follows:
(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
xx xx xx xx 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.
4. It is also necessary to take note of Article 163 which reads as follows:
Council of Ministers to aid and advise Governor-(1) There shall be a
Council of Ministers with the Chief Minister as the head to aid and advise the
Governor in the exercise of his functions, except in so far as he is by or
under this Constitution required to exercise his functions or any of them in
(2) If any question arises whether any matter is or not a matter as respects
which the Governor is by or under this Constitution required to act in his
discretion, the decision of the Governor in his discretion shall be final, and
the validity of anything done by the Governor shall not be called in question
on the ground that he ought or ought not have acted in his discretion.
(3) The question whether any, and if so what, advice was tendered by
Ministers to the Governor shall not be inquired into in any court.
5. By virtue of Article 177 of the Constitution any Minister even if he is
not a member of either House of Legislature of the State would be entitled to
be present at the meeting of either House of Legislature assembled together at
the time of address of the Governor as contemplated by Article 175. Article 164
(4) provides that the Minister who for any period of six months is not a member
of Legislature of the State shall at the expiration of the period cease to be a
Minister. The plain words cannot be cut down in any manner and confined to a
case where a Minister is a member of the Legislature of the State loses for
some reason his seat in the State Legislature. There is nothing in the
Constitution which would make the appointment of the Chief Minister and
Minister, none of whom are the members of the State Legislature, illegal. (See
Har Sharan Verma v. Shri Tribhuvan Narain Singh (1971 (1) SCC 616). In the said
case it was held that appointment of a person as Chief Minister cannot be
challenged on the ground that he was not a member of the Legislature of the
State at the time of appointment.
6. An amendment was proposed to the Constituent Assembly that the following
should be incorporated:
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, but the amendment was not accepted. (See Constituent Assembly Debates
dated Ist June, 1949 Vol. (VIII) page 521).
7. A brief reference to the proceedings of the Constituent Assembly would
throw enough light on the question. A member of the Constituent Assembly
proposed an amendment to the following effect:
No person should be appointed a Minister unless at the time of his
appointment, he is elected member of the House.
8. The petitioner has submitted that in a democratic set up a person who is
not a member of the Legislature will not be appointed as the Minister.
9. Article 144(3) of the Draft Constitution which corresponds to Article
164(4) of the Constitution reads:
144(3) 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.
10. During the debate on this draft Article, Mr. Mohd. Tahir, MP, 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. 11. 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 back door as has been
provided in the Constitution and in the 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
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 and 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 and
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 not be permitted to be
appointed a member of the Cabinet on the assumption that he shall be able to
get himself elected from the same constituency or from another constituency.
After all the privileges that he is permitted is a privilege that extends only
to six months. It does not confer a right on that individual to sit in the
House 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 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.
12. After the debate the proposed amendment was negatived and Article 144(3)
13. 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. [(See S.R. Chaudhuri v.
State of Punjab and Ors. (2001 (7) SCC 126)]
14. In Dr. Janak Raj Jai v. H.D. Deve Gowda (1997 (10) SCC 462) it was held
that a member of the Legislative Assembly could be appointed as Prime Minister.
The position in law was highlighted in paragraphs 4 and 5 noted as follows:
4. The petitioner, however, applied before the High Court of Delhi for
a review of its impugned judgment on the ground that he had subsequently discovered
that after being appointed as the Prime Minister of India, Shri Deve Gowda had
retained his membership of the Karnataka Legislative Assembly. He resigned from
his membership of the Karnataka Legislative Assembly on becoming a Member of
the Rajya Sabha. The High Court of Delhi rightly rejected the review petition
since in a review petition, such new grounds could not be urged. The petitioner
has challenged the rejection of this ground before us.
5. In order not to leave any grievance, we briefly deal with this additional
submission also. Under Article 75(5), a person who is not a Member of either
House of Parliament can be appointed a Minister for a period of six consecutive
months. If during this period he is not elected to either House of Parliament he
will cease to be a Minister. We have not been shown any Article of the
Constitution under which a person who is elected to a State Legislature is
prohibited from being appointed as a Minister under Article 75(5). In fact,
Article 75(5) is widely worded. It covers every person who is not a Member of
either House of Parliament. Such a person can be appointed as a Minister and
can remain as a Minister only for a period of six consecutive months unless he
is elected to either House of Parliament within that period. If he is not so
elected, he shall cease to be a Minister on the expiry of six consecutive
months. The same provision is applicable to the Prime Minister for reasons
which we have set out in our judgment in the case of S.P. Anand v.
H.D. Deve Gowda (1996 (6) SCC 734). There is no disqualification which can
be spelled out under Article 75(5) in respect of a member of a State
Legislative Assembly who is appointed under Article 75(5).
15. It would be necessary to take note of The Prohibition of Simultaneous
Membership Rules, 1950 (in short the Rules).
The said rules were promulgated in exercise of powers conferred by Clause
(2) of Article 101 and Clause (2) of Article 190 of the Constitution which read
1. These Rules may be called the Prohibition of Simultaneous Membership
2. The period at the expiration of which the seat in Parliament of a person
who is chosen a member both of Parliament and of a House of Legislature of a
State specified in the First Schedule to the Constitution of India (hereinafter
referred to as the Constitution) shall become vacant, unless he has
previously resigned his seat in the Legislature of such State, shall be
fourteen days from the date of publication in the Gazette of India or in the
Official Gazette of the State, whichever is later, of the declaration that he
has been so chosen.
3. The period at the expiration of which the seat of a person who is chosen
a member of the Legislatures of two or more States specified in the First
Schedule to the Constitution in the Legislatures of all such States shall
become vacant, unless he has previously resigned his seat in the Legislature of
all but one of the States, shall be ten days from the later or, as the case may
be, the latest of the dates of publication in the Official Gazettes of such
States of the declarations that he has been so chosen.
16. In view of what has been stated by this Court in the aforesaid
decisions, the inevitable conclusion is that this petition is sans merit and
deserves to be dismissed which we direct.