Har Sharan Verma v. Tribhuvan Narain Singh, Chief Minister U.P. & Anr.

Slkri, C. J. In this appeal by certificate granted by the High Court under Art. 132 of the Constitution a short question 86 to the interpretation of cl. 4 of Article 164 of the Constitution arises. This question has arisen in connection with the appointment on October, 18, 1970, of Shri Tribbuvan Narain Singh as Chief Mini-ster of Uttar Pradesh. He was not a member of either House of Legislature of the Srate of Uttar Pradesh at the time of bis appoint-ment.

The appellant, who is a rate-Payer of the Lucknow Consti-tuency to the Uttar Pradesh Legislative As$embly, filed a petitioi) under Art. 226 of the Constitution in the High Court cballenging the appointment of the respondent as Chief Minister. The High Court dismissed the petition but granted a certificaite under Art. 132 of the Constitution, and the appeal is now before us.

Article 164(4) reads as follows :

"164(4) A Minister who for any period of six conse-cutive months is not a member of the Legislature of the State sball at the expiration of that periodi cease to be a Minister."

The appellant contends that this clause only applies when a Miw- $ter, who is a Member of the Legislature of the State, loses his seat and the idea behind cl. (4) of Art. 164 is to give him a period of six months to get himself re-elected. The learned Counsel for the respondent, Mr. Singhvi, contends thait the scope of cl. (4) cannot be whittled down in this manner as there is no warrant in the language of the article. He further says that even in Eng-land a person can be a Minister without being a Member of the House of Commons or the House of Lords. He further points out that a number of i:onstitutions contain similar provisions.

It seems to us that cl. (4) of Art. 164 must be interpreted in the context oi Arts. 163 and 164 of the Constitution. Article 163(1) provides that "there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of bis functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion." · Under cl.(!) of Art. 164, the Chief Minister has to be appointed by the Governor a.nd the other Ministers have to be appointed by him on the advice of the Chief Minister. They all bold office during the pleasure of the Governor. Cause (!) does not provide any qualification for the person to be selected by the Governor as the Chief Minister or Minister, but cl. (2) makes it essential that the Council of Ministers sha.Jl be collectively res-ponsible to the Legislative As$embly of the State. This is the only condition that the Constitution prescribes in this behalf.

HAil SllAllAN VAllMA v, T. N. SINGH (Sikri, C. J.) The appellant says that if the interpretation put by the High Court is correct it would be possible for a Governor to appoint a. Chief Minister and Ministers none of whom are Members of the State Legislature. He said that this could not have been con-templated. But if the Legislative Assembly of the State to whom this Council of Ministers would be collectively responsible endorses this nnlikely Council of Ministers there is nothing in the Consti-tution which would make this appointment illegal.

The appellant drew our a.ttention to Art. 175 in which it is provided that "the Governor may address the Legislative Assembly or, in the case of a State having a Lagislative Council, either House of !he Legisla.ture of the State, or both Houses assembled together, ancl may for that purpose require the attendance of Members." He .said that it would be rather strange that the Ministers, who were not members of either the Legislative Assembly or the Legis-lative Council would not be present. But 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 Counstitution 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 Lei;slature of the State. We are assured that the meaning we have given to cl. (4) of Art. 164 is the correct one from the proceedings of the Constituent Assembly and the position as it obtains in England, Austrdia and South Africa.

An amendment(') was proposed in the Constituent Assembly that the following be substituted :

"A Minister shall, at the time of his being chosen as such be a member of the Legislative Assembly or Legisla-tive Council of the States as the case may be."

This amendment was, however, negatived.

It is interesting to note the position in England. According to Jennings(') :

"It is a well-settled convention that these ministers should be either peers or members of the House of the Commons. There have been occasional exceptions. Mr, (I) Constituent Assembly Debates dated June I, 1949 Oftlcial Report Vol. VIII. p. s~t.

(2) Cabin~ Government by Jennings-third edition, page 60.

SUPREME COURT RllPORTS [1971] SUPP. s.c.R. .A Gladstone once held office out of Parliament for nine

months. 'The Scottish Law officers sometimes, as in 1923 and 1924. are not in parliament, General Smuts was minister without portfolio . and a member of the War Cabinet from 1916 until 1918. Mr. Ramsay MacDonald and Mr. Malcolm MacDonald were members of the Cabi-net though not in Parliament from the general eleetion of November 1935 until early in 1936."

"The House of Commons is, however, critical of such exceptions."

S. 64 of the Commonwelth of Australia Constitution Act inter a/ia provides that "after the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senetor or a member of the House ot representatives." Commenting on this Quick & Garran(~ state as follows :

"The appointment of a Federal Ministry will neces-sarily precede the election of the first Federal Parliament. There must be a Ministry to assist and advise the Gov-ernor General in the performance of Executive Acts essential for the conduct of the first general election. The first Federal Ministry. cannot at their appointment be members of the Federal Parliament, because at the time of their appointment there is no such Parliament in existence. After the first general election, however, no Federal Minister is permitted to hold office for a longer peribd than three months, unless he is or becomes a sena-tor or a member of the House of Representatives.

Section 32 of the Constitution Act of South Austra-lia (4th January, 1856) contained a similar provision, viz .. that after the first general election of the South Australian Parliament, no person should hold the offices of' Chief Secretary. Attorney-Oeneral, Treasurer, Com-missioner of Crown Lands; and Immigration, or Commis-sioner of Public Works, for more than three calendar months, unless he should be a member of the Legislative Council or House of Assembly."

This shows that Art. 164 (4l has an ancient lineage. Section 14< 1) of the South Africa Act, 1909 reads thus :

"The Govemor-Generaf may appoint officers not exceeding (twelve) in number to administer such depart-ments of State of the Union as the Governor-General in (3) "Annotated Constitution of the Australian Commonwealth" by Quick & Garrail:, p. 711.

Council may establish; such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Executive Council and shall be the King's ministers of State for the Union. After the first general election of members of the House of Assembly, as hereinafter provide, no minister shall hold office for a longer period than three months unless he is or becomes J member of either House of Parliament."

Hahlo and Kahn(') state thus :

"The rule of responsible government that Ministers must be Members of Parliament is ensured by the statu-tory requirement that they be or within three months become members of either House."

In the result the appeal fails and is dismissed. There will be no order as to costs.

(4) ;,The British Commonwealth-The Deve opment of its Laws and Coustitutic'ns" by Hahlo & Kahn (Vol. Sp. 130). '