A Constitution Bench of Supreme 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.
Har Sharan Verma v. Shri Tribhuvan Narain Singh, Chief Minister, U.P. and Another, (1971) 1 SCC 616
In that case, Shri T.N. Singh was appointed the Chief Minister of Uttar Pradesh even though he was not a member of either House of the State Legislature on the date of his appointment. His appointment was challenged in the High Court by way of a writ petition filed under Article 226 of the Constitution. The High Court dismissed the Writ Petition but granted a certificate under Article 132 of the Constitution. That is how the matter reached Supreme Court.
Now, Article 164(4) 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. It was, however, urged that on the plain language of the said provision, it is obvious that it speaks of appointment of a Minister who is a member of the State Legislature but who loses his seat at a later date in which case he can continue as a Minister for a period of six months during which he must be re-elected or otherwise, must vacate office.
Interpreting the said clause in the context of Article 163 and other clauses of Article 164, Supreme Court held that Clause 4 of Article 164 had an ancient lineage and there was no reason to whittle down the plain thrust of the said provision by confining it to cases where a person being a member of the Legislature and a Minister, for some reason, loses his seat in the State. Accordingly, the decision of the High Court was affirmed.
Har Sharan Verma v. State of U.P. 1985 (2) SCC 48
The same petitioner again raised the issue when Shri K.P. Tiwari was appointed in November, 1984 as a Minister of the U.P. Government even though he was not a member of either House of the State Legislature. He contended that the decision rendered by Supreme Court in the case of Shri T. N. Singh was not good law since the Court had overlooked the amendment of Article 173(a) effected by the Constitution (Sixteenth) Amendment Act, 1963.
Dealing with this contention Supreme Court pointed out that 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 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 was to ensure that only a person having allegiance to India shall be eligible for members; the Legislature.
The Court further pointed out that clause (4) of Article 164 of the Constitution provides 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. In other words the Court held that a person who was not a member of either House of the State Legislature could also be appointed by the Governor as the Minister (Which includes the Chief Minister) for a period not exceeding six consecutive months. The Court, therefore, did not see any material change brought about in the legal position by reason of the amendment of Article 173(a) of the Constitution from that as explained in the earlier decision in Shri T.N. Singh’s case (supra).
Har Sharan Verma v. Union of India and Another (1987) Suppl. SCC
Not content with these two decisions rendered by Supreme Court, the very same petitioner once again questioned the appointment of Shri Sita Ram Kesri as a Minister of State of the Central Cabinet since he was not a member of either House of Parliament at the date of the appointment. Spurning the challenge, Supreme Court held that to appoint a non-member of the Parliament as a Minister did not militate against the constitutional mechanism nor did it militate against the democratic principles embodied in the Constitution.
The Court, therefore, upheld the appointment under Article 75(5) of the Constitution read with Article 88 thereof, which Article, inter alia, conferred on every Minister the right to speak in, and otherwise to take part in the proceedings of, either House, in joint sitting of the Houses, and in a Committee of Parliament of which he may be named a member, though not entitled to vote. The Court, therefore, on a combined reading of the aforesaid two provisions held that a person not being a member of either House of Parliament can be appointed a Minister up to a period of six months.