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PETITIONER: HAR SHARAN VERMA

       Vs.

RESPONDENT: TRIBHUVAN NARAIN SINGH, CHIEF MINISTER  U.P. & ANR.

DATE OF JUDGMENT16/03/1971

BENCH: SIKRI, S.M. (CJ) BENCH: SIKRI, S.M. (CJ) SHELAT, J.M. VAIDYIALINGAM, C.A.

CITATION:  1971 AIR 1331            1971 SCR    1  CITATOR INFO :  RF         1985 SC 282  (3,12)

ACT: Constitution  of  India, Art. 164(4)--Appointment  as  Chief Minister  of  a  person  who  is  not  a  member  of   State Legislature--Validity of appointment.

HEADNOTE: The first respondent was appointed as Chief Minister of U.P. on October 18, 1970.  His appointment was challenged on  the ground  that  he  was  not  a  member  of  either  house  of legislature  at the time of appointment.  In appeal to  this Court  against  the  High Court’s  judgment  dismissing  the petition under Art. 226, HELD : (i) Clause (4) of Art. 164 must be interpreted in the context  of 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 his 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.(1) of Art. 164 the Chief Minister has to be appointed by him  on  the advice of the Chief, Minister.  They  all  hold office  during  the pleasure of the Governor.   Clause’  (1) does  not  provide any qualification for the  person  to  be selected by the Governor as Chief Minister or minister.  But cl.  (2)  makes it essential that the council  of  Ministers shall   be  collectively  responsible  to  the   Legislative Assembly of the State.  This is the only condition that  the Constitution  prescribes in this behalf.  There is  thus  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.  That this is the correct meaning to be  given to  Art  164(4)  is  supported by  the  proceedings  of  the Constituent  Assembly  and  the position as  it  obtains  in England, Australia and South Africa. [12GH, 3E]. (ii) -If  the Governor of a State appoints a Chief  Minister and  Council  of Ministers none of whom are members  of  the State Legislature, and the Legislative Assembly of the State to  whom  the  Council of  Ministers  would  be  responsible endorses this unlikely Council of Ministers, there is  noth-

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ing  in the Constitution which would make  this  appointment illegal. [3AB]. (iii)     There  can be no difficulty in Ministers  who  are not members of the Legislature being present at the time  of the  Governor’s address because by virtue of Art.  177  they would  be  entitled  to be present at  the  meeting  of  the Legislature addressed by the Governor. [3C-D].

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2205 of 1970. Appeal from the judgment and order dated November 4, 1970 of the Allahabad High.  Court in Lucknow Bench in writ petition No. 1402 of 1970. The appellant appeared in person. 1-1 S. c India/71 2 L. M. Singhvi, R. Bana and O. P. Rana, for the respondents. The Judgment of the Court was delivered by Sikri,  C. J. In this appeal by certificate granted by the High  Court  under  Art. 132 of  the  Constitution  a  short question as 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  Tribhuvan  Narain  Singh as Chief  Minister  of  Uttar Pradesh.  He was not a member of either House of Legislature of  the State of Uttar Pradesh at the time of  his  appoint- ment. The  appellant, who is a rate-Payer of the  Lucknow  Consti- tuency  to the Uttar Pradesh Legislative Assembly,  filed  a petition  under  Art. 226 of the Constitution  in  the  High Court challenging the appointment of the respondent as Chief Minister.  The High Court dismissed the petition but granted a  certificate 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               consecutive  months  is not a  member  of  the               Legislature   of  the  State  shall   at   the               expiration  of  that  period  cease  to  be  a               Minister." The appellant contends that this clause only applies when  a Minister,  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.  reelected. The  learned  Counsel  for  the  respondent,  Mr.   Singhvi, contends  that 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 England 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 constitutions contain similar provisions. It seems to us that cl. (4) of Art. 164 must be  interpreted in  the  context of 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 his 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.(1)  of  Art. 164, the Chief Minister  has  to  be appointed by the Governor and the other Ministers have to be appointed by him on the advice of the Chief Minister.   They all hold office during the pleasure of the Governor.  Clause

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(1) 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 shall   be  collectively  responsible  to  the   Legislative Assembly of the State.  This is the only condition that  the Constitution prescribes in this behalf.                              3 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 contemplated.  But if the Legislative Assembly of  the  State to whom this Council of  Ministers  would  be collectively  responsible endorses this unlikely Council  of Ministers  there is nothing in the Constitution which  would make this appointment illegal. The appellant drew our attention 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  Legislative Council,  either House of the Legislature of the  State,  or both  Houses  assembled together, and 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 Legislative  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 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. 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, Australia and South Africa. An  amendment(1)  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 Legislative 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(2) :               "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.               (1)   Constituent Assembly Debates dated  June               1, 1949 Official Report Vol.  VIII.  P. 521.               (2)   Cabinet  Government  by   Jennings-third               edition, page 60.                                     4               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  Cabinet               though  not  in Parliament  from  the  general               election  of  November  1935  until  early  in               1936."

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             "The House of Commons is, however, critical of               such  exceptions." S.   64  of  the Commonwelth of Australia  Constitution  Act inter  alia 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 senator  or  a member of the House of representatives." Commenting on  this Quick & Garran(3) state as, follows :               "The  appointment of a Federal  Ministry  will               necessarily precede the election of the  first               Federal Parliament.  There must be a  Ministry               to  assist and advise the Governor 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 ,,period than  three               months, unless he is or becomes a senator or a               member of the House of Representatives.               Section  32 of the Constitution Act  of  South               Australia  (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-General,               Treasurer,  Commissioner  of Crown  Lands  and               Immigration, or Commissioner 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 (4) has  an  ancient               lineage.   Section 14(1) of the  South  Africa               Act, 1909 reads thus               "The Governor-General may appoint officers not               exceeding  (twelve)  in number  to  administer               such departments of State of the Union as  the               Governor-General in               (3) "Annotated Constitution of the  Australian               Commonwealth" by Quick & Garran, p. 711.                                     5               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  a               member of either House of Parliament."               Hahlo and Kahn(4) state thus :               "The  rule  of  responsible  government   that               Ministers  must  be Members of  Parliament  is               ensured by the statutory 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. G. C.                             Appeal dismissed. (4)  "The British Commonwealth--The Development of its  Laws

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and Constitutions" by Hahlo & Kahn (Vol. 5 P. 130). 6