Becoming CM After Losing Election: Legal Analysis

The news of the recent Assembly Elections of West Bengal is currently one of the most debated topics in India. Mamta Banerjee lost her seat in the election contested at Nandigram to the BJP leader Suvendu Adhikari. The West Bengal Assembly Elections was held from March 24th to April 29th 2021 ended in triumph for the Trinamool Congress. TMC won by securing 213 out of 293 seats against BJP on 2nd March, 2021.[1]

This incident left a question in the minds of many people if there is any legal or constitutional bar for a person who, even after losing election, be appointed as a chief minister? The article aims to answer this question by understanding the legal provisions and precedents on this issue.

Can a losing candidate in election be appointed as the Chief Minister?

There are several instances in the history of India where the leader of a political party, even after a defeat in the assembly elections, became a chief minister.[2]

  • The first case regarding this was witnessed in the State of Bombay (Now split into states Maharastra and Gujarat) where Moraji Desai who lost his seat in the General Assembly Elections in 1952 was elected as a leader of Congress Party and nominated as the Chief Minister of the State of Bombay.
  • Similar instance was observed in the State of Madras (now Chennai) when the former Governor-General C. Rajagopalachari did not even appear to participate in the elections contested for the post of Chief Minister, was appointed as the Chief Minister of Madras.
  • In 1970 the former Chief Minister of the State of Uttar Pradesh Tribhuvan Narayan Singh was defeated in the by-election and was later asked to resign from his post. This led to the imposition of President’s rule during that time.
  • In 2009, Jharkhand saw another situation where their former Chief Minister Shibu Soren lost his by-elections and had to resign due to political pressure.
  • BJP leader Arjun Munda had lost the election. While, BJP had won the election of Jharkhand in 2013 yet he was appointed as Chief Minister.
  • In 2017, BJP won the election of Himanchal Pradesh while BJP’s frontline candidate lost and Jay Ram Thakur was appointed as Chief Minister.
  • Recently, Tirath Singh Rawat was appointed as the Chief Minister of State of Uttarakhand, whereas he is not an MLA.

Procedure for Appointment of Chief Minister:

The post of Chief Minister is of a chief functionary, of each state government.  Being the real executive and head of Council of Ministers of his state, he is a very powerful figure.

Method of Appointment of CM:

As per the Constitution of India, the appointment of a CM vests on the Governor of the respective state. The Governor being a nominal head of the State does not exercise the real choice of appointing the CM. Practically it is the part or group in coalition that secures majority in the House of State of Legislature that gets to elect its leader and finally communicate their choice to the Governor. The Governor then appoints the mentioned leader as CM and asks him to form his Council of Ministers.

In the situation of no clear majority in the State Legislative Assembly, the Governor asks the leader of the largest single party to form the government, and if there is no largest single party, the group or collective gets to decide their leader.[3]

 Legal Provisions Involved:

  1. Article 163 (3) of the Constitution of India quotes that there shall be a Council of Ministers with Chief Minister as its head, where both collectively aid and advise the Governor in the performance of his functions. This article attaches a provision that the Governor may act under his own discretion if he is required to do so by the Constitution.
  • The Constitution of India in its Article 164 lays down the provisions regarding ministers. This article entails five clauses.
  • Clause 1 enumerates that the power of appointing a Chief Minister is vested on the Governor of State. The clause further mentions the appointment of other ministers by the Governor on the advice of the Chief Minister. It is to be noted that all the ministers appointed by the Governor hold their office at the pleasure of the Governor.

Clause 1 has a provison of disqualification attached in Clause 4 of this article. Clause 4 bars a person from holding the office of minister if he is unable to gain the membership of the State Legislature within a period of six consecutive months.

  • Clause 2 provides the principle of collective responsibility of Council of Ministers towards the State’s Legislative Assembly.
  • Clause 3 entrusts the power of administering the oaths of office and of secrecy to every Minister, prior to his joining, in accordance with the forms set up for purposes enumerated in the third schedule of the Act.
  • Clause 4 disqualifies a minister from holding his post if he remains fails to get the membership of the State Legislation within six consecutive months.
  • Clause 5 requires the State Legislature to determine the salaries and allowances of the Ministers appointed under this section. The determined salaries and allowances are to be specified in the second schedule of the Act.

Landmark Judgements:

Har Sharan Verma v Tribhuvan Narain Singh

In Har Sharan Verma v Tribhuvan Narain Singh[4]  the Supreme Court’s Constitutional Bench answered the issue whether a person who is not a member of the State Legislature can be appointed as Chief Minister. In the present case the appointment of the respondent as the Chief Minister of Uttar Pradesh was challenged on the ground that he was not a member of the Legislature of States at the time of his appointment as a Chief Minister. Har Sharan Verma argued before the High Court of Allahabad that Clause (1) of Article 164 of the Constitutional bars the nomination of a Chief Minister who is not a member of the Legislature.

The writ of quo warranto was declined by the High Court of Allahabad, but the certificate was given under Article 132 of the Constitution. The High Court in the context of interpretation of five clauses of Art.164 held: “The Court will not accept an interpretation which could result in nonsensical outcomes. The term ‘minister’ in clauses two, three, four, and five of Article 164 clearly includes the Chief Minister. A Chief Ministry, like any other minister, can hold office for six months without being a member of the Legislature under clause five.”

Another question raised was whether a person who has been chosen as the party leader by a majority of members of the Legislative Assembly may be named Chief Minister before being a member of the legislature. The following was the court’s decision:

Article 164, clause (4), does not prevent such a “stop-gap” arrangement. It states that a minister who is not a member of the State Legislature for six months in a row ceases to be a minister at the end of that term. As a result, the Constitution does not prohibit the appointment as Chief Minister of a person who is not a member of the Legislative Assembly but commands its support, until  his election to the House within a period of six months. It also does not violate the basic principle of parliamentary government that the Chief or Prime Minister must have the confidence of the legislature. It is not for this Court to decide whether such a “stop-gap” appointment is politically desirable or appropriate. As a result, it appears to me that the respondent’s appointment as Chief Minister was not unlawful. This implies that any minister who is not a member of the legislature can serve for six months.[5]

The case was brought before the Supreme Court where Supreme Court upheld the decision of Allahabad High Court. For the first time, the Supreme Court’s Constitutional Bench of five judges interpreted Article 164(4).

Chief Justice Sikri, speaking for a unanimous Constitutional Bench, made the following observations:[6]

“We believe that Article 164(4) must be read in connection with Articles 163 and 164 of the Constitution. ‘There must be a Council of Ministers with the Chief Minister at its head to help and advise the Governor in the performance of his powers, save insofar as he is compelled to perform his powers or any of them in his discretion by or under this Constitution,’ says Article 163(1). The Governor must appoint the Chief Minister, and he must select additional Ministers on the Chief Minister’s recommendations, according to Article 164(1). They hold their office at the Governor’s pleasure. Clause (1) does not stipulate any qualifications for the Governor’s choice of Chief Minister or Minister; however, clause (2) stipulates that the Council of Ministers must be collectively accountable to the State’s Legislative Assembly. This is the sole criterion imposed by the Constitution in this regard.”

The Constitutional Bench pointed to the proceedings in the Constituent Assembly, where an amendment was presented that stated, a Minister must be a member of the Legislative Assembly or Legislative Council of the States, as the case may be, at the time of his appointment. The Constituent Assembly had rejected this amendment.

Article 175 was also used by the appellant in this instance. The appellant argued that a person who was appointed as Minister but was not a member of the legislature at the time of his appointment could not be obliged to attend the House taking into consideration Article 175 of the Constitution.

The Constitution Bench responded to this issue by ruling that Ministers, even though they are not members of the Legislative Assembly or Legislative Council, are authorised to attend such a meeting under Article 177. It has been submitted that, he cannot be compelled to be there because he is not covered by Article 175 of the Constitution.

The outcome of this decision was that under Article 164(1) read with Article 164(4) of the Constitution, a non-Member of a state’s legislature can be appointed as a Minister, and that this provision is not limited to cases where a person who has already been appointed as a Minister loses membership in the legislature for some reason.

Har Sharan Verma v. State of U.P

The appellant in Har Sharan Verma v. State of U.P.[7]challenged an appointment made under Article 164(1) read with Article 164(2) of the Constitution. K.P. Tiwari was appointed as Minister of the Government of Uttar Pradesh, despite the fact that he was not a member of either House of the State Legislature at the time. A writ petition was filed under Article 32 of the Constitution to dispute the decision. In this case, an additional point was made before a two-judge Supreme Court bench, that the Constitution Bench in the previous case did not take into account the adjustment to Article 173 (a)[8] , which requires a person contesting an election to a State legislature to make and subscribe an oath of affirmation before a person authorised in that regard by the Election Commission, according to the third Schedule.

The Supreme Court dismissed the case, stating that the revision to Article 173(a) has made no significant difference in the legal position of a person who is not a member of the State Legislature may be appointed as a Minister confirming with Article 164. (4).

Har Sharan Verma v UOI-

Another two-judge bench of the Supreme Court addressed the propriety of appointing a person who was not a Member of Parliament as a Minister in the Union of India in Har Sharan Verma v. Union of India[9]. The petitioner this time challenged Sitaram Kesari’s appointment as a Minister of State in the Union of India, despite the fact that he was not a member of either House of Parliament during the time of his nomination. Sitaram Kesari had ceased to be a Minister by the time this matter came up for judgement, and it was decided that it is standard practise for courts not to interpret the Constitution unless there is a current matter before them.[10]

Nonetheless, the Court determined that the combined impact of Articles 75(5) and 88 allows a person who is not a member of either House of Parliament to serve as a Minister for up to six months. He would be able to participate in the proceedings even if he is not able to vote. A reference to the proceedings in the Constituent Assembly was made in this instance as well. This case has the same ratio as the Tribhuvan Narain Singh case.

S.P. Anand v. H.D. Deve Gowda

The appointment of H.D. Deve Gowda as Prime Minister was challenged in S.P. Anand v. H.D. Deve Gowda[11] on the ground that he was not a Member of Parliament at the period of his nomination as a Prime Minister. Following previous decisions, the Supreme Court dismissed the challenge, stating that anyone who is not a member of either House of Parliament or either House of State Legislature can be appointed as a Minister in the Central Cabinet (which includes the Prime Minister) or a Minister in the State Cabinet (which would include a Chief Minister). The Supreme Court ruled in this case that the English law of the Prime Minister being a member of either House, preferably the House of Commons, is not part of our constitutional scheme because our Constitution expressly allows a non-Member to be appointed as Chief Minister or Prime Minister for a period of up to six months.

S.R. Chaudhuri v. State of Punjab- Time Duration of which a non- member may hold his post-

The question in S.R. Chaudhuri v. State of Punjab[12] was whether a non-Member of a legislature who fails to get elected for six months after being appointed as a Minister can be reappointed as a Minister without having to be elected to the legislature. The Supreme Court ruled that the privilege of continuing to serve as a Minister for six months without being elected is a one-time opportunity for the individual involved during the term of the Legislative Assembly in question.[13]

Suggestion:

Keeping the fact in view that the Constitution of India is the supreme and all citizens irrespective of their position or political affiliation must abide by the rule of law, Mamta Banerjee the present acting Chief minister of West Bengal too should act as per law.

Conclusion:

The cases discussed above demonstrate that choosing a person who is not a member of the either house of State Legislature, is not prohibited to be appointed as a Chief Minister under the Constitution of India. The Article 164 (4) of the constitution clearly states that the post of Chief Minister, without a membership of either house of legislature, can be held till six months only. It also interprets that after the termination of six successive months, the appointment ceases to exist. The recent case of West Bengal must also be observed and become a part of legal and political debate.


[1] Published by Ashok Kini, Can a Chief Minister Who Lost Election Be Appointed as Chief Minister?, Know the Law ,Live Law, Available at https://www.livelaw.in/know-the-law/can-person-lost-elections-appointed-chief-minister-mamata-banerjee-trinamool-congress-173554 (Last accessed on 9th June,2021)

[2] Published by Prqabhash K Dutta , Can Mamta Banerjee become chief minister after losing Nandigram? Has it happened in past?, India today, Available at https://www.indiatoday.in/elections/west-bengal-assembly-polls-2021/story/mamata-banerjee-west-bengal-assembly-result-nandigram-1798321-2021-05-03 (Last acccessed on 9th June,2021)

[3] Published by KK Ghai, Chief Minister: Method, Appointment,Functions and Position ,Your Article Library, Available at https://www.yourarticlelibrary.com/political-science/chief-minister-method-of-appointment-functions-and-position/40353 (last accessed on 9th June 2021)

[4]  (1971) 1 SCC 616

[5] Published by Dr. R.Prakash , Appointment of Non-Member of Parliament or State Legislature as Minister—Scope , Constitutional Law, Ebc India,  Available at https://www.ebc-india.com/lawyer/articles/2005_2_69.htm#Note6 (last accessed on 10th June,2021)

[6]  Ibid. at p. 617, para 3.

[7] (1985) 2 SCC 48

[8]  By the Constitution (Sixteenth Amendment) Act, 1963

[9] 1987 Supp SCC 310

[10]  It is settled practice that the Supreme Court does not decide matters which are only of academic interest. Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147, R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183, Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, 1987 Supp SCC 93 and Arnit Das v. State of Bihar, (2001) 7 SCC 657

[11]  (1996) 6 SCC 734

[12]  (2001) 7 SCC 126

[13] Published by Dr. R.Prakash , Appointment of Non-Member of Parliament or State Legislature as Minister—Scope , Constitutional Law, Ebc India,  Available at https://www.ebc-india.com/lawyer/articles/2005_2_69.htm#Note6 (last accessed on 10th June,2021)


Author: Gunjan Pathak from Law College, Dehradun.


One comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s