Constitutional Validity of the Appointment of Non-Member of the Legislature as Chief Minister: A Critical Analysis in Light of the West Bengal Elections, 2021 – By Pawan Reley

May 5, 2021

The Election to the Legislative Assembly of West Bengal was held between March 27 to April 29, 2021 for 292 Constituencies where the AITC secured 213 seats and won the election. The turning point came when the leader of the AITC Ms. Mamata Banerjee lost the election in her Constituency and could not become a member of the Legislative Assembly. She, however, decided to be sworn in as the state’s Chief Minister. It gives rise to the following questions of law:

Article 164 (4) of the Constitution of India provides 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. This clause [originally taken from Section 10 (2) of the Government of India Act, 1935], provides that there is no bar for anyone who is not a member of Legislature to become minister. However, some important objections were raised in the Constitutional Assembly during the enactment of Article 164 (4) [Article 144(3) of the Draft Constitution], which is relevant to discuss before proceeding to deal with issue in hand. Prof. Shibban Lal Saksena in the Constituent Assembly Debates on 1 June, 1949 Part I (Volume III) suggested to change the word “Legislative Assembly” in place of “Legislature of the State” in Article 144(3) of the Draft Constitution. He opined that:

“That means that if a person is not a Lower House but is made a Minister, and supposing that the man fails to get elected to the Lower House on the basis of adult suffrage in six months, then under this article we are providing that he can still continue to remain a Minister if he is nominated to the Upper House by the Governor. I think it is undemocratic that our Ministers should be persons who cannot even win an election by adult suffrage. I have therefore suggested that we should say ‘Legislative Assembly’ instead of Legislature’ in this article. In the Assembly nobody is nominated and all Ministers shall therefore have to win an election by adult suffrage within six months of their appointment in order to continue to be ministers. Otherwise persons who are not representatives of the people but are favourites of the Premier may be nominated to the Upper House in the provincial Legislatures and they can continue to remain Minister under this clause (3) of the article. I desire that only members who are able the post of a Minister. Anybody who is not able to get elected by member of the Council of Minister.”

Another important objection was raised by Shri R. K. Sidhva (C.P. and Berar: General) in the Constituent Assembly Debates on 1 June, 1949 Part I (Volume III) in the following words:

“…I feel that this is merely a repetition or imitation of a clause which exists in the present Government of India Act of 1935. I do not think is necessary now, because, under the new Constitution, the number of members in the provincial legislatures will be ranging from 300 to 600 and I do not think we will be wanting in people to fill even special posts. I am opposed to an outsider who is not a member of the legislature, however highly qualified he may be, being called upon to hold the very responsible office of a Minister even for six months. From the experience we have gained, we find that in some cases where Ministers have been so appointed, eventually it has led to corruption. After the period of six months, somebody has to vacate a seat and it has so happened in one or two provinces that to make room for this Minister, that gentleman had to be provided with some job for which he was not qualified. Therefore, when we are going to have large Houses in which there will be members with vast experience, and experts in many respects, I feel that it is not proper, and it is not a very good principle to imitate what is existing in the Government of India Act, 1935, and say that if the Chief Minister feels that so and so who is not a member is required for expert advice, he should be taken as a Minister. Sometimes, the Chief Minister would like to favour somebody. In the name of the special qualifications that he may possess, he will be asked to become a Minister, and at the end of six months, he will have to be made a member of the legislature, because he cannot hold the office after six month. As I stated, Sir, some other member who will be asked to vacate will have to be offered something and this will lead to corrupt public life.”

Dr. Ambedkar rejected the said objections or any other proposal on the said article on two grounds:

Ultimately after the long-drawn debate article 164 (4) was finalized. On a plain reading of Article 164 (4) or Article 75 (5), it is evident that the Constitution makers desired to permit a person who is not a member of either House to be appointed as minister for a period of six months and if during the said period she/he was not elected to either House, he/she would cease to be minister.

The ambit and scope of Article 164(4) has already been discussed by the Hon’ble in catena of its decision. The Constitution Bench of the Hon’ble Supreme Court in Har Sharan Verma v. Shri Tribhuvan Narain Singh, Chief Minister, U.P. and another, 1971(1) SCC 616 dealt with the similar issue in detail. 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 said issue was once again raised in Har Sharan Verma v. State of U.P. and  another, (1985) 2 SCC 48. However, a new argument of the qualification of the minister was taken that as per the changes brought in Article 173 (1) (a), 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 on that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule.

However, the Hon’ble Supreme Court rejected the said argument and held that it is a settled position of law 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. 

The Hon’ble Supreme Court in the case of Har Sharan Verma Vs. Union of India and another, 1987(Supp.) SCC 310 made the important observation combining the effect of Article 75 (5) [Pari-Materia to Article 164 (4)] and Article 88 that the combined effect 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. 

At this juncture it is important to note one more important decision of the Hon’ble Supreme Court in the case of S.P. Anand, Indore v. H.D. Deve Gowda and others, (1996) 6 SCC 734, where 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 questioned. The Hon’ble Supreme Court upheld the appointment of Shri H.D. Deve Gowda as Prime Minister and held that:

“…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…”

Another important issue was raised in the case of S. R Choudhary Vs. State of Punjab, (2001) 7 SCC 126 that whether 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 ?

The Hon’ble Supreme Court answering the question in negative held that:

“…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.”

The Hon’ble Supreme Court in the case of Ashok Pandey Vs. Km Mayawati, AIR 2007 SC 2259 reiterated the fact that person who is not a member of Legislative Assembly or Legislative Council can be appointed as Chief Minister or as a Minister. However, it should also be noted that the period of six months implies that the period must “continuously” and not even “intermittently” run. 

Thus, the constitutional position in relation to appointment of Minister which includes Chief Minister is clear that even a non-member of Legislature can be appointed as Minister/Chief Minister but only for continuous period of 6 months. Within 6 months, a non-member has to become the member of the House. There are instances where a non-member of the Legislature has been appointed as Chief Minister. This took place in the case of Shri C. Rajagopalachari who was made the Chief Minister of Madras in 1952, or of Shri Anajiah, who was made Chief Minister of Andhra Pradesh, in 1980. 

Thus, the appointment of Ms. Mamata Banerjee as Chief Minister of West Bengal despite her not becoming member of the Legislature is justified under the Constitution. However, after calculating the current facts of Covid-19 and politics,  the important question arises here that what if the Election Commission in the coming six months orders that no by-election will take place in Kolkata due to Covid-19, and if Chief Minister does not be become member of the Legislature because of not holding elections (and not because of her losing in by-election or not participating in by-election) then whether she can continue as Chief Minister or she has to resign as per the mandate of Article 164 (4) of the Constitution of India? There are a few more similar questions which emanate from the combination of law and politics and cannot be answered at the moment but may pose serious challenge before the Judiciary to tackle them and pave the path for students of Constitutional law and politics to learn in the future. 

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Pawan Reley is an advocate practicing at the Supreme Court of India. 

Disclaimer: The views or opinions expressed are solely of the author.