http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Writ Petition (civil)  296 of 2007

PETITIONER: Ashok Pandey

RESPONDENT: K. Mayawati and Ors

DATE OF JUDGMENT: 13/06/2007

BENCH: Dr. ARIJIT PASAYAT & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J                    

1.      This petition is filed under Article 32 of the Constitution  of India, 1950 (in short the \021Constitution\022) seeking a writ of quo  warranto against respondent Nos.1 and 2. Essentially, the  grievance is that respondent Nos. 1 and 2 are not qualified to  be appointed as Chief Minister and Minister respectively as  they were members of the Rajya Sabha and thus disqualified  under Article 164(4) read with Article 164(1) of the  Constitution. The basic stand is that since they were members  of the Rajya Sabha the requirement of their being elected to  the State Legislative Assembly within a period of 6 months  does not apply to them as they are already legislators of the  Rajya Sabha.  

2.      While appreciating the stand we shall take note of the  provisions on which emphasis is laid by the petitioner who  appears in person.  

3.      Article 164 (1) and (4) read as follows:

       \023(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.                 xx              xx              xx              xx

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.\024  

4.      It is also necessary to take note of Article 163 which  reads as follows: \023Council of Ministers to aid and advise  Governor-(1)  There shall be a Council of  Ministers with the Chief Minister as 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.

(2)     If any question arises whether any matter is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

or not a matter as respects which the Governor  is by or under this Constitution required to act  in his discretion, the decision of the Governor  in his discretion shall be final, and the validity  of anything done by the Governor shall not be  called in question on the ground that he ought  or ought not have acted in his discretion.

(3)     The question whether any, and if so what,  advice was tendered by Ministers to the  Governor shall not be inquired into in any  court.\024  

5.      By virtue of Article 177 of the Constitution any Minister  even if he is not a member of either House of Legislature of the  State would be entitled to be present at the meeting of either  House of Legislature assembled together at the time of address  of the Governor as contemplated by Article 175. Article 164 (4)  provides that the Minister who for any period of six months is  not a member of Legislature of the State shall at the expiration  of the period cease to be a Minister. The plain words cannot be  cut down in any manner and confined to a case where a  Minister is a member of the Legislature of the State loses for   some reason his seat in the State Legislature. There is nothing  in the Constitution which would make the appointment of the  Chief Minister and Minister, none of whom are the members of  the State Legislature, illegal. (See Har Sharan Verma v. Shri  Tribhuvan Narain Singh (1971 (1) SCC 616).  In the said case  it was held that appointment of a person as Chief Minister  cannot be challenged on the ground that he was not a member  of the Legislature of the State at the time of appointment.   

6.      An amendment was proposed to the Constituent  Assembly that the following should be incorporated:

\023A 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\024, but the  amendment was not accepted. (See  Constituent Assembly Debates dated Ist  June, 1949 Vol. (VIII) page 521).\024

7.      A brief reference to the proceedings of the Constituent  Assembly would throw enough light on the question. A  member of the Constituent Assembly proposed an amendment  to the following effect:

\023No person should be appointed a Minister  unless at the time of his appointment, he is  elected member of the House.\024

8.      The petitioner has submitted that in a democratic set up  a person who is not a member of the Legislature will not be  appointed as the Minister.  

9.      Article 144(3) of the Draft Constitution which  corresponds to Article 164(4) of the Constitution reads:

\023144(3) 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.\024                  10.     During the debate on this draft Article, Mr. Mohd. Tahir,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

MP, proposed the following amendment:

\023That for clause (3) of Article 144, the following  be substituted:

       \023(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.\024

11.     Speaking in support of the proposed amendment, Mr.  Tahir said in the Constituent Assembly:  

\023This 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 back door as has been provided in the  Constitution and in the 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.\024

    Dr. Ambedkar opposing the amendment replied: \023Now 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 and 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 and 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 not be permitted to be appointed a  member of the Cabinet on the assumption that  he shall be able to get himself elected from the  same constituency or from another  constituency. After all the privileges that he is  permitted is a privilege that extends only to six  months. It does not confer a right on that  individual to sit in the House being elected at  all. My second submission is this that the fact  that a nominated Minister is a member of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

Cabinet does not either violate the principle of  collective responsibility nor does it violate the  principle of confidence because 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.\024

12.     After the debate the proposed amendment was negatived  and Article 144(3) was adopted.  

13.     The absence of the expression \023from amongst members of  the Legislature\024 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. [(See S.R. Chaudhuri v.  State of Punjab and Ors. (2001 (7) SCC 126)] 14.     In Dr. Janak Raj Jai v. H.D. Deve Gowda (1997 (10) SCC  462) it was held that a member of the Legislative Assembly  could be appointed as Prime Minister. The position in law was  highlighted in paragraphs 4 and 5 noted as follows:

\0244.  The petitioner, however, applied before  the High Court of Delhi for a review of its  impugned judgment on the ground that he had  subsequently discovered that after being  appointed as the Prime Minister of India,  Shri  Deve    Gowda had retained his membership of  the Karnataka Legislative Assembly. He  resigned from his membership of the  Karnataka Legislative Assembly on becoming a  Member of the Rajya Sabha. The High Court of  Delhi rightly rejected the review petition since  in a review petition, such new grounds could  not be urged. The petitioner has challenged the  rejection of this ground before us.  

5.      In order not to leave any grievance, we  briefly deal with this additional submission  also. Under Article 75(5), a person who is not a  Member of either House of Parliament can be  appointed a Minister for a period       of six  consecutive months. If during this period he is  not elected to either House of Parliament he  will cease to be a Minister. We have not been shown any Article of the Constitution under   which a person who is elected to a State  Legislature is prohibited from being appointed  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

as a Minister under Article 75(5). In fact,  Article 75(5) is widely worded. It covers every  person who is not a Member of either House of  Parliament. Such a person can be appointed  as a Minister and can remain as a Minister  only for a period of six consecutive months  unless he is elected to either House of  Parliament within that period. If he is not so  elected, he shall cease to be a Minister on the  expiry    of six consecutive months. The  same provision is applicable to the Prime  Minister for reasons which we have set out in  our judgment in the case of S.P. Anand  v.  H.D. Deve Gowda (1996 (6) SCC 734). There is  no disqualification which can be spelled out  under Article 75(5) in respect of a member of a  State Legislative Assembly who is appointed  under Article 75(5)\024.  

        15.     It would be necessary to take note of The Prohibition of  Simultaneous Membership Rules, 1950 (in short the \021Rules\022).  The said rules were promulgated in exercise of powers  conferred by Clause (2) of Article 101 and Clause (2) of Article  190 of the Constitution which read as follows:

\0241. These Rules may be called the Prohibition  of Simultaneous Membership Rules, 1950.

2. The period at the expiration of which the  seat in Parliament of a person who is chosen a  member both of Parliament and of a House of  Legislature of a State specified in the First  Schedule to the Constitution of India  (hereinafter referred to as \023the Constitution\024)  shall become vacant, unless he has previously   resigned his seat in the Legislature of such  State, shall be fourteen days from the date of  publication in the Gazette of India or in the  Official Gazette of the State, whichever is later,  of the declaration that he has been so chosen.      *  * 3. The period at the expiration of which the  seat of a person who is chosen a member of  the Legislatures of two or more States specified  in the First Schedule to the Constitution in the  Legislatures of all such States shall become  vacant,  unless he has previously resigned his  seat in the Legislature of all but one of the  States, shall be ten days from the later or,  as  the case may be, the latest of the dates of  publication in the Official Gazettes of such  States of the declarations that he  has been so  chosen. \023  

16.     In view of what has been stated by this Court in the  aforesaid decisions, the inevitable conclusion is that this  petition is sans merit and deserves to be dismissed which we  direct.