Provision
“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.
(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.
Section 10(2) of the Government of India Act, 1935
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 in case 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.”
Constitution Assembly Debate on the Provision
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. “
After the debate the proposed amendment was negatived and Article 144(3) was adopted.
Precedents
The ambit and scope of Article 164(4) came up for consideration before a Constitution Bench of Supreme 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.
The 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 the 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.”
An issue of interpretation of Article 75(5) which is in pari- materia to Article 164(4) came up for consideration in Har Sharan Verma Vs. Union of India and another, 1987(Supp.) SCC 310.
In this case, appointment of Shri Sita Ram Kesari, as a Minister of State in the Central Cabinet was put in issue in a writ petition filed in the Allahabad High Court, once again by the same writ petitioner, Shri Hari Sharan Verma, on the ground that since Shri Kesari was not a Member of either House of Parliament on the date of his appointment as a Minister, he could not have been appointed as a Minister of State in the Central Cabinet. The High Court dismissed the writ petition by a reasoned order though in limine. Supreme Court agreed with the High Court and after taking note of Article 75, which makes provision for appointment of Central Ministers and particularly Clause (5) thereof, which reads:
“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.”
Thus, Supreme 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, Supreme Court while upholding his appointment observed:
“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 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…”.
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, Supreme 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.
Reference
SR Choudhary v. State of Punjab (2001)