Victory of Didi’s Party, but Not Hers: Is Her Appointment Right?

Basant Vijay Sagar

Though All India Trinamool Congress won the West Bengal elections, Mamata Banerjee, its leader, lost her seat from Nandigram. Now, she is going to swear in as the Chief Minister of the state. With regards to this, it becomes quite important to understand what, in law or constitution, hinders a person from becoming a Chief Minister, who lost election? This article is an attempt to elucidate the law and precedents in this regard.

The foremost provision dealing with this issue is article 164 of the Constitution. This deals with appointment of Chief Minister and other ministers. It reads as follows:

“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.”

However, article 164(4) provides as follows: “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.”

In Har Sharan Verma vs Tribhuvan Narain Singh,[1] the Supreme Court decided the issue pertaining to the appointment of non-member to State Legislature as the Chief Minister. The challenge in this case was to the position of Tribhuvan Narain Singh, who despite not being a member of either of the houses, was appointed as Chief Minister of Uttar Pradesh. Har Sharan Verma, the petitioner, contended before the Allahabad High Court, that Clause (1) of Article 164 of the Constitution forbids any non-member of the Legislature to become a Chief Minister. However, the court rejected the challenge and held that a Chief Minister, like any other Minister, can hold office for six months without being a member of the Legislature.

The High Court held:[2]

“Article 164 is divided into five clauses. The first deals with the appointment of the Chief Minister and other ministers; … the fourth provides that a minister who is not a member of the Legislature tor six consecutive months shall vacate his office…. If the word “Minister” throughout this Article was not intended to include the Chief Minister, it would follow that the Chief Minister is exempt from the Constitutional duty to take the oath of office, and shall not cease to be a minister if after his appointment his election to the Legislature is set aside and he is not re-elected within six months of being unseated. … The Court cannot accept an interpretation which will lead to such absurd results. It is clear that the word ‘minister’ in clauses second, third, fourth and fifth of Article 164 includes the Chief Minister.”

Thus, the challenge was dismissed by the court and finally, it reached the Constitutional bench of Supreme Court.

The Supreme Court upheld High Court’s judgement and said:[3]

“It seems to us that by virtue of Art. 177 the Ministers, even if they are not Members of a Legislative Assembly or Legislative Council would be entitled to be present at such a meeting. It seems to us that in the context of the other provisions of the Constitution referred to above there is no reason why the plain words of cl. (4) of Art. 164 should be cut down in any manner and confined to a case where a, Minister loses for some reason his seat in the Legislature of the State”.

The same man, Har Sharan Verma, approached the Apex Court again, to challenge the appointment of K.P. Tewari, who again not being a member of either of the Houses of State Legislature, was appointed as a Minister of the Uttar Pradesh Government.[4] He argued that the Court didn’t consider the effect of Sixteenth Constitutional Amendment Act, 1963, which amended article 173(A) in the Tribhuvan Narain Singh case.[5] According to him, after the amendment of Article 173, it was no more in the hands of the Governor to appoint a non-member person of the State Legislature as a Minister and that the applicability of Article 164(4) is restricted to a person, who had been a Minister but due to some reasons, ceased to be a member of the Legislature.

Rejecting the arguments, the Court noted that no material change in the legal position has been brought about in the appointment criteria only by reason of the amendment of Article 173 (a). The court also observed that the makers of the Constitution knowingly provided for such a provision. It was necessitated by the situations where a Minister may lose a seat due to some inevitable circumstances, such as a delay in the result of an election petition, etc, or may not be a member when he is appointed. A few more attempts were taken by Verma; however, none turned out to be fruitful.

Similar legal issues were considered by Supreme Court in a petition filed by SP Anand challenging appointment of H.D. Deve Gowda as the Prime Minister of India, who was not a member of either House of Parliament at the time of appointment.[6] In its judgement, the Supreme Court, referring the above three judgments and a couple of High Court judgments, held that a person who is not a member of either House of Parliament or of either House of a State Legislature can be appointed a Minister in the Central Cabinet (which would include a Prime Minister) or a Minister in the State Cabinet (which would include a Chief Minister), as the case may be.

However, it is pertinent to note that the above ratio of the Supreme court is limited to the time period of six-month, breaching which a minister remains no more a minister. In S.R. Chaudhuri vs State of Punjab,[7] considered a connected legal issue – “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?” The Court held that it is illegal 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.

These precedents make it clear that there is no restriction in appointing a non-member person of the legislature as the Chief Minister of the state. However, it still remains a legal conundrum as to what will be the fate of such political leader who without even contesting elections, claims the post of Chief Minister; as technically speaking, even he too is a non-member of legislature.


[1] AIR 1971 SC 1331

[2] AIR 1971 All 237

[3] Supra Note 1

[4] AIR 1985 SC 282

[5] Supra Note 1

[6] AIR 1997 SC272

[7] AIR 2001 SC 2707

This article is authored by Basant Vijay Sagar, a first-year law student at National Law University, Delhi. Presently working as contributing author at The Blue Letters.

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