Non-MLAs cannot be reappointed as Ministers beyond six months: SC

By T. Padmanabha Rao

NEW DELHI, AUG. 17. The Supreme Court has ruled that no one can be a Minister for more than six consecutive months without becoming a member of the Legislature concerned during the term of that Legislative Assembly.

According to the apex court, Article 164(4) of the Constitution is to be resorted only as an exception and it cannot be used to bypass the basic constitutional principles of representative democracy.

The court was delivering the judgment in a case which challenged the legality of a Congressman, Mr. Tej Parkash Singh (respondent), being sworn-in as Minister in Punjab in November 1996, for a second time without being a member of the Legislature after serving the first six months as a Minister (without being a member of the Legislature).

Interpreting Article 164(4), the Chief Justice, Dr. A. S. Anand, who delivered the judgment, said ``it would be subverting the Constitution 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 in the meanwhile,'' and ``the practice would be clearly derogatory to the constitutional scheme, improper, undemocratic and invalid.''

``Article 164(4) is at best only in the nature of an exception to the normal rule of only members of the legislature being Ministers, restricted to a short period of six consecutive months,'' and ``this exception is essentially required to be used to meet very extraordinary situation and must be strictly construed and sparingly used,'' the Bench, which included Mr. Justice R. C. Lahoti and Mr. Justice K. G. Balakrishnan, said.

Clause (4) of Article 164 says: ``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 Bench, in the context of the facts and circumstances of the case, declined to express its opinion ``on whether a non- legislator can be appointed as a Minister, if on the date of such appointment, he suffers from a constitutional or statutory disqualification to contest the election within the next six consecutive months.''

``We are not expressing our opinion on the issue, as it is not directly involved in the present case and the settled practice of this court is not to express opinion on issues which do not essentially arise in a case under consideration,'' the Bench said.

By permitting a non-legislator Minister to be reappointed, without getting elected within the period prescribed by Article 164(4), would amount to ignoring the electorate in having its say as to who should represent it - a position which is wholly unacceptable,'' the Bench said adding ``the seductive temptations to cling to office regardless of constitutional restraint must be totally eschewed.''

``The will of the people cannot be permitted to be subordinated to political expediency of the Prime Minister or the Chief Minister as the case may be, to have in his Cabinet a non- legislator as a Minister for an indefinite period by repeated reappointments without the individual seeking popular mandate of the electorate,'' the Bench cautioned.

``The framers of the Constitution did not visualise that a non- legislator can be repeatedly appointed as a Minister for a turn of six months each time, without getting elected because such a course strikes at the very root of parliamentary democracy,'' the Bench observed.

The respondent was sworn-in for the first time as a Minister (without being a member) in September, 1995 on the advice of the then Chief Minister, Mr. Harcharan Singh Barar. As he failed to get himself elected member of the legislature within six months, he resigned from the Cabinet. During the term of the same Assembly, on the advice of another Chief Minister, Ms. Rajinder Kaur Bhattal, Mr. Tej Parkash Singh was appointed as Minister (for a second time) though he was not a member of the legislature. The Punjab and Haryana High Court dismissed in limine a writ petition from Mr. S. R. Chaudhuri challenging the appointment of the respondent as a Minister for the second time. Hence the present appeal before the apex court.

The apex court held that ``reappointment'' of the respondent as a Minister in Punjab with effect from November 23, 1996, was invalid and unconstitutional.

The Bench, however, observed that ``with a view to avoid reopening of settled matters, that this judgment shall not render any order made or action taken by Mr. Tej Parkash Singh, as a Minister, after his reappointment to the Council of Ministers, as bad or invalid only on account of his reappointment as a Minister having been found to be invalid.''

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