Can A Non-Member of A State Legislature Be Elected As A Minister Or Chief Minister?

This article is written by Aditi Bhushan from KIIT School of Law   

A unique event happened in the election of 2021 to the Legislative Assembly of West Bengal which was conducted between from 27^th of March to 29^th of April for 292 constituencies when a number of parties participated however the main focus was on the tussle between Mamata Banerjee led All India Trinamool Congress and Modi- Shah led BJP. The result which came out put the citizens in an ethical dilemma. Out of 292 constituencies AITC secured 219 constituencies, however the party president Mamata Banerjee lost from her constituency i.e Nandigram to Suvendu Adhikari of the BJP and could not become MLA. This situation led to multiple questions: Whether Mamata Banerjee will be sworn in as the Chief Minister or not? Does a non-member of the legislative assembly be appointed as CM? If yes then what is the time period for a non-member of the Legislature to be permitted to become the Chief Minister? Is it true that appointing a Chief Minister who is not a member of the House will not be contrary to democratic ideals and the national interest? Whether a non-member who fails be elected during the six-month term following his or her appointment as a Minister?

Answering the very first of whether Mamata Banerjee can be sworn as CM is YES.
Even after losing from her constituency and not being a MLA, she can be appointed as CM under article 164(4) of Indian Constitution. Article 164 (4) of the Indian Constitution states that a Minister who is not a member of the State Legislature for six consecutive months’ ceases to be a Minister at the end of that period. This clause [originally taken from Section 10 (2) of the Government of India Act, 1935] states that no one who is not a member of the legislature is barred from becoming a minister. The corresponding provision for the Union is contained in Article 75(5) of the Indian Constitution. And as mentioned in the Article 164(4) if the person within 6 months fails to be elected again then he ceases to be minister.

The scope and ambit of Article 164 (4) of the Indian Constitution have already been considered by the Hon’ble Supreme Court of India in a series of decisions. The Hon’ble Supreme Court’s Constitution Bench in [Har Sharan Verma Vs. Shri Tribhuvan Narain Singh, Chief Minister, U.P. & Anr., 1971(1) SCC 616] dealt with a similar subject in depth. The Bench addressed whether a person who is not a member of the State Legislature can be nominated as Chief Minister. The nomination of Tribhuvan Narain Singh as Chief Minister of Uttar Pradesh was challenged in the aforementioned case on the grounds that he was not a member of either House of Legislature at the time of his appointment.

In Har Sharan Verma v. Tribhuvan Narain Singh, the appellant challenged the respondent’s appointment as Chief Minister of Uttar Pradesh on October 18, 1970, notwithstanding the fact that he was not a member of the legislature at the time of his appointment. The Allahabad High Court dismissed the challenge, ruling that a Chief Minister, like any other Minister, can retain office for six months without being a member of the Legislature. The High Court denied the quo warranto writ filed under Article 226 of the Constitution but issued the certificate under Article 132 of the Constitution. For the first time, a five-judge Supreme Court Constitution Bench read Article 164(4). On behalf of the appellant, it was argued that Article 164(4) applied exclusively to a person who was once a Minister but is no longer a Minister for any reason. Such a person may serve for a period of six months, although an initial appointment of a non-Member of a State legislature is not permitted.

In the matter of Ashok Pandey Vs. Km Mayawati, AIR 2007 SC 2259, the Supreme Court reiterated that a person who is not a member of the Legislative Assembly or Legislative Council can be appointed as Chief Minister or Minister. It should be emphasised, however, that the length of six months implies that the time must run continuously and not even occasionally.

Another issue was if a non-member who fails to be elected to the Legislature after being appointed as a Minister for six consecutive months, or when a Minister has ceased to be a Legislator, be reappointed as a Minister without being elected to the Legislature after the six-month term has expired?

In S. R. Chaudhuri Vs State Of Punjab, (2001) 7 SCC 126 The Supreme Court ruled that it is unconstitutional to allow an individual who is not a member of the Legislature to be appointed as a Minister for a period of six months without first being elected. The approach would certainly be in violation of the constitutional structure, as well as improper, undemocratic, and illegitimate. Article 164 (4) is, at most, a one-time exception to the regular rule of only members of the Legislature serving as Ministers, limited to a term of six consecutive months.

Similar cases in past

This is not the first time in the recent past that a sitting CM has lost the election and the party has gone on to form the government.

Yogi Adityanath, for example, was not an MLA when he became Uttar Pradesh Chief Minister in 2017; he was elected an MLC within six months. Within six months, both of his deputies — Dinesh Sharma and Keshav Prasad Maurya — were elected MLCs with him.

Similar circumstances arose in Jharkhand in 2009, when CM Shibu Soren was defeated in a by-election – perhaps the second occasion an incumbent CM was defeated in a by-election.

In 2017, Goa Chief Minister Laxmikant Parsekar lost his Mandrem seat, but the BJP went on to establish the government with the aid of regional parties such as the Goa Forward Party and the Maharashtrawadi Gomantak Party, as well as some Independent MLAs. However, the BJP did not appoint Parsekar as chief minister; instead, it dispatched then-Defense Minister, late Manohar Parikkar, to take over in Goa.

Tribhuvan Narayan Singh, the then-CM of Uttar Pradesh, had to retire after losing a by-election in 1970. However, Soren’s defeat culminated in the imposition of President’s Rule in Jharkhand.

As a result, the constitutional stance on the nomination of Ministers, including the Chief Minister, is clear: a non-member of the Legislature can be appointed as Minister/Chief Minister, but only for a continuous term of six months. A non-member must become a member of the House within six months. There have been situations where a non-legislator has been appointed as Chief Minister. This occurred in the cases of Shri C. Rajagopalachari, who was appointed Chief Minister of Madras in 1952, and Shri Anajiah, who was appointed Chief Minister of Andhra Pradesh in 1980.

These precedents illustrate that there is no prohibition to appointing a person who is not a member of the Legislature to the position of Chief Minister of the State. Though, technically and legally, there is no distinction between a non-member (who did not participate in the election at all) and a non-member (who contested and lost the election), the question still remains whether it is ethical or moral to appoint a person who lost the election as Chief Minister?

Citations:

1. Aneesh Raj & Tanya Biswas, Can A Non-Member Of A State Legislature Be Elected As A Minister Or Chief Minister?, LiveLaw(18 July 2021 5:01 PM), https://www.livelaw.in/columns/chief-minister-parliamentary-system-representation-of-people-act-1951-177703

2. Dinesh Singh Chauhan, Can A Person Who Lost Election Be Appointed As Chief Minister?, Legal Service India E-journal, https://www.legalserviceindia.com/legal/article- 6121-can-a-person-who-lost-election-be-appointed-as-chief-minister-.html

3. Pawan Reley, Constitutional Validity of the Appointment of Non-Member of the Legislature as Chief Minister: A Critical Analysis in Light of the West Bengal Elections, 2021, Legit Eye(May 5, 2021), https://www.legalserviceindia.com/legal/article-6121-can-a-person-who-lost-election-be-appointed-as-chief-minister-.html

This Article has been edited by Anamika Singh