Introduction
In the Indian Constitution of 1949, Article 164(4) is in pari materia with Article 75(5) and prepared carpeted paths for the non-elected persons to be selected as Ministers. Utterly contrary to at least two objectives declared in the Preamble of our constitution; equality and democracy. Naturally, these statutes have repeatedly demanded interpretation from the courts and constitutional benches. We must inquire how those statutes remedied what legal gap and understand how those significant exceptions to our constitutional objective ultimately prove the importance of those objectives.
Role of Ministers as a hyphen
British journalist Baghet jocosely described the role of the cabinet as a hyphen between the executive and legislative departments. As cabinet members, Ministers have been appointed either by choice or through election since the distant past. Status, heredity, expertise, and heroism are emphasized in Manusmriti verse 7.54 regarding the appointment of Ministers in ancient India. In the medieval era, Chapter 10 of Kautilya’s (Chanakya’s) Arthashastra advises Kings on choosing Ministers based on personal integrity and competence. Following King Vikramaditya’s footsteps, the so-called illiterate emperor Akbar formed Nabaratna (the assembly of Ministers), which was unparalleled in excellence and power. After many years of subjugation, in independent India, despite the statutory system of general elections to establish democracy and equality, why has the option for choosing Ministers from non-elected individuals been left open?
Popularly two significant types of power systems are used in governance worldwide.
- Fused Powers System (VOTERS—>LEGISLATURE—>EXECUTIVE) and,
- Separation Powers System (LEGISLATURE<—VOTERS—>EXECUTIVE).
In both, voters assume the role of the lowest-level decision-maker. Then why, though for a limited period, does the Indian Constitution privilege a non-elected to use the power of a Minister?
A debate on the draft between Mr. Mohd. Tahir and Dr. B. R. Ambedkar
Mr. Mohd. Tahir, M.P. proposed an Amendment during the preparation of the constitutional draft of Article 144(3) corresponding to the present Article 164(4). The proposed amendment sought to ensure that to become a minister, the people must first elect them and enter the Legislative Assembly or Council. Tahir said if the governor appoints someone as a minister whom the country’s people did not elect, such empowerment is like entering through the back door. So the people of the States did not like that man to be their representative; why such an appointment? Dr. Ambedkar opposed the movement and explained that it is assumed that a candidate for appointment to a ministerial position is defeated in the election for any reason. In that case, this should not stand in the way of giving a chance to a wise man like him to act in the cabinet because it is also assumed that he will be elected from his previous constituency or any other constituency. Besides, this privilege is only for six months and only entitles the person to remain in the ministry if elected in due course. The constituent assembly did not accept the proposed Amendment. The accepted version of Article 164(4), kept the provision which says that a person who has not been a member of the State Legislature for six consecutive months, once the period has passed, be no longer eligible to remain a minister and it remained as an exception to meet an extraordinary situation.
The concept of political ethics incarnates the following questions
- A person under Article 171(5) be a member of the Legislative Council who doesn’t have any special knowledge as prescribed?
In Har Sharan Varma v. Chandra Bhan Gupta And Ors, the petitioner alleged the respondent’s nomination under Article 171(3) sub-clause (d) as a Legislative Council member and appointment to the chair of Chief Minister of U.P. in 1960 after his two times defeat in the election to the Legislative Assembly as invalid and unconstitutional. The respondent cannot claim “special knowledge” concerning art, literature, science, social service, or cooperative movement as required under Article 171(5). The petition gets dismissed as “special knowledge or practical experience” is the qualifying criterion. The court admitted the respondent’s practical experience as a politician under the meaning of the Constitution.
- Can the State Governor appoint someone as a minister or chief minister who is not a legislature member?
In Har Sharan Verma v. Tribhuvan Narain Singh, justice S Sikri interpreted Article 164(4) in the context of Articles 163 and 164, relied on the statute’s plain meaning, and dismissed the appeal. To decide on this a quo warranto writ was filed using Article 226 by the petitioner against the respondent’s appointment, for not being an elected legislature member but appointed as the Chief Minister of U.P. in 1971, the High Court reasoned, if the Council of Ministers or the Chief Minister appointed by the Governor of the State is not an elected member of the State Legislature, and if the Assembly of that State approves this fictitious Cabinet, nothing in the Constitution can render such an appointment illegal.
- After the Amendment of Article 173, is the Governor permitted to appoint a non-legislature Minister?
In the Har Sharan Verma v. State Of U.P. & Anr case, the petitioner objected to K.P. Tewari’s appointment as a Minister of U.P. in 1984, in the light of the Constitution (Sixteenth) Amendment Act, 1963. The addition of clause 173(a) made it mandatory for a candidate before some person authorized by the Election Commission to take an oath or affirmation. The petitioner contends that the ministry of a person who is not a legislature member is no longer valid subject to the approval of the Governor. The apex court dismissed the plea. It observed that the fear expressed by the petitioner that a person who does not owe to the Constitution as prescribed by the Article and is not willing to uphold the sovereignty and integrity of India would have an opportunity to become a Minister is not well founded. Because, as per Article 164(3), a Minister has to take the oath of allegiance prescribed in the Third Schedule.
- Can a person not a member of both houses of Parliament take oath as the Prime Minister of India?
In S.P. Anand, Indore v. H.D. Deve Gowda & Others on 6 November 1996, the court upheld the appointment of Shri H.D. Deve Gowda as the Prime Minister of India. He was not a Member of either House of Parliament. It was observed that to address the issue of the Prime Minister’s appointment, the correct interpretation of Articles 163 and 164 of the Constitution practically correspond to Articles 74 and 75.” From a plain interpretation of Article 75(5) it undoubtedly follows that the Constitution-makers wanted that one could become a minister without being elected, that is, without being a member of any house of Parliament.
- Whether a Minister who is not a member of any House of Parliament for six consecutive months shall be terminated on the expiry of that term or not?
In S.R. Chaudhuri v. State of Punjab (2001), Tej Prakash Singh was appointed as a Minister in 1995 without being elected to the Punjab state assembly and resigned after completing a consecutive six-month term as per Article 164(4). The Petitioner, S. R. Chaudhuri, challenged his reappointment as a Minister without being elected in 1996. The Supreme Court bench observed that allowing a person who is not a legislature member to repeatedly appoint ministers for “consecutive six months” terms without getting elected within the stipulated period would be subversive of the Constitution. The practice would be disparaging to the constitutional framework, inappropriate, autocratic, and illegal. The appeal succeeded.
Conclusion
The essence of parliamentary democracy lies in the ability of persons who govern the legislature as people’s representatives. Governors or Chief Ministers must abide by the constitutional law and not sacrifice the parliamentary system for political expediency. Article 164(4) is not an enabling provision as a source of power for the short-term-appointment of a non-legislator as a Minister; instead is a disqualification or restriction for such a Minister holding office without being elected for a period of six consecutive months. The ambit and scope of Article 164 and, in particular, of Article 164(4) reassured the objectives of the Constitution of India.
Author(s) Name: Saumen Chakraborty (Graduate, Magadh University, Bodh-Gaya)
