Often, we hear of a candidate swearing in as a Chief Minister after losing his or her election seat. This leaves us wondering about the technicalities of our Constitution which allow such candidates to take oath even after losing the confidence of the public. And also makes us wonder if this is right or wrong. Constitutionally speaking, it isn’t wrong under Article 164 but if we are to speak morally and ethically, it isn’t right.
In this article, the author has made an attempt to elucidate the process of election of Chief Minister focusing on the recent appointment of Mamata Banerjee as CM after losing her Nandigram seat along with landmark judgments on the same issue.
Mamata Banerjee’s Chief Ministerial Election 2021
Recently, elections for the office of Chief Minister were held in the state of West Bengal from 27th March to 29th April 2021. Mamata Banerjee’s party, Trinamool Congress, won 213 seats out of a total of 292 seats. But Mamata lost in her constituency, Nandigram, to Bharatiya Janata Party’s candidate, Sevendu Adhikari. Despite losing, she was sworn in as the Chief Minister on 5th of May.
In 2011 as well, she was not a member of the Legislative Assembly of West Bengal when she was sworn in as the Chief Minister. She was a Member of Parliament and later contested from Bhabanipur to keep her office.
Many have questioned her election as she was the sitting CM and lost in her own constituency. Her morality on this issue has been questioned but she took oath as the Chief Minister saying that she accepts the verdict of the people of Nandigram and that the Bharatiya Janata Party has lost the election.
This is not an isolated incident. Quite a few times, lost candidates have taken oath as the Chief Minister and have later been elected as the member of the State Legislative Assembly or the State Legislative Council if the State is bicameral. There are times when the party attains a majority but the chief ministerial candidate loses the election and there are times when a person elected as the legislature party leader becomes CM after losing the election.
Some examples include the appointment of C. Rajagopalachari as the Chief Minister of Madras in 1952, Shri Anajiah as the Chief Minister of Andhra Pradesh in 1980, Jairam Thakur as the Chief Minister of Himachal Pradesh in 2017, Uddhav Thackeray as Chief Minister of Maharashtra in 2019 or of Tirath Singh Rawat as Chief Minister of Uttarakhand in 2021.
Procedure for appointment of Chief Minister
Technically, the Governor appoints the Chief Minister of a State[1]. But in reality, the Governor does not have any power or say as such in the appointment. The Governor is the de facto head of a State[2] and the Chief Minister is the de jure head of a State. It is the leader of the majority party who gives the name to the Governor and then the Governor only formally appoints him or her. When no single party attains majority, the candidate of the single largest party is appointed and sometimes, two or three parties come together to form a coalition and decide collectively who the Chief Minister is going to be.
Any person who is a citizen of India and not less than twenty five years of age is eligible to be elected as the Chief Minister[3].
Taking the oath as the Chief Minister is considered as the official appointment. After this, the Chief Minister has the power to choose his Council of Ministers which are again officially appointed by the Governor but the Chief Minister has the exclusive power to choose his Council. This council of Ministers is headed by the Chief Minister and makes laws and policies for the state.
The Chief Minister and other Ministers hold office during the pleasure of the Governor but in reality, the CM stays in office till he enjoys majority in the House and when the House (State Legislative Assembly) passes a vote of no confidence against him or her, he or she has to resign. As the CM is the leader of the Council, upon his resignation, all the other members resign as well. If the CM does not lose majority support, he or she will stay in office for a term of five years.
Article 164(4)[4]
Article 164 contains provisions related to the appointment of ministers. It states that the Governor shall appoint the Chief Minister and all other Ministers shall be appointed by the Governor on the advice of the Chief Minister. This Council of Ministers has a collective responsibility to the Legislative Assembly of the State. The Ministers enter into office after taking an oath and the salaries and allowances are decided timely by the State Legislature.
Clause (4) of this Article states that any minister who is not a member of the legislature for a period of six consecutive months shall cease to be a minister at the end of that period. This is the provision that is used by candidates like Mamata Banerjee after losing the election in order to stay in power. It suggests that literally anyone can become a minister provided he or she gets elected to the legislature within six months from the date of appointment.
In order to get elected to the Assembly, another Minister resigns from his or her seat and then a by-election is held to fill that vacant seat. But there have been instances when ministers have lost the bypoll. Uttar Pradesh Chief Minister Tribhuvan Narayan Singh lost the bypoll in the 1970s and immediately resigned. In 2009, Shibu Soren, Chief Minister of Jharkhand lost but tried to stay in power by getting re-elected. There was pressure from the Congress Party and Soren had to resign leading to President’s rule in Jharkhand.
Article 75 is para materia to Article 164 containing provisions regarding the appointment of the Prime Minister and his Council of Ministers. The same criteria of getting elected within six months applies here.
At the same time, Article 164 is not an exhaustive provision. A minister appointed under the provisions of clause (4) does not enjoy the same powers as a minister appointed through representation. A non-elected minister does not have the right to vote in the House; only the members of the House enjoy this privilege[5]. However, he or she has the right to address the House, speak in the House and take part in the proceedings of the House[6]. Parliamentary privilege as laid down in Article 194 also does not extend to these ministers. It refers to freedom of speech with reference to the floor of the House and protection against judicial proceedings against anything said in the House. Clause (4) of Article 194 clearly lays down that such privileges only extend to members who have a right to address the House and speak in the House.
Therefore, our Constitution allows anyone to be a part of the House without getting elected along with certain restrictions and a prescribed time-limit upholding the spirit of democracy.
The case of Jayalalithaa’s election – 2001[7]
In the year 2001, a writ petition was filed against the election of J. Jayalalithaa as the Chief Minister of Tamil Nadu on the grounds of disqualification under the Representative of the People Act 1951. The trial courts had convicted her of offences under the Prevention of Corruption Act 1988 and sentenced her to imprisonment of a total of five years; three in one offence and two in another. This conviction amounts to disqualification under the RPA Act. Anyone who has been convicted of any offence of corruption and sentenced to imprisonment for two years or more stands disqualified for contesting elections for the State Legislative Assembly for a period that can extend upto six years[8]. This provision applied to Jayalalithaa and hence her election had been questioned.
It was argued by Jayalalithaa’s counsels that her election is valid under Article 164(4) of the Constitution as any person can be appointed as a Minister provided that he or she gets elected to the Assembly within six months of such appointment and if not, the appointment shall stand dissolved.
Therefore, the issue raised in this case was whether a person who has been disqualified to contest election by virtue of the RPA can be elected as the CM by using the provisions of 164(4)?
The matter was taken up by a Constitution bench composed of Justices S.P. Bharucha, G.B. Pattanaik, Y.K. Sabharwal, Ruma Pal and Brijesh Kumar. All the judges unanimously decided against Jayalalithaa on 21st September 2001.
The then Governor of Tamil Nadu, Fathima Beevi, had stated that Jayalalithaa was entitled to be elected under the provisions of Article 164(4) while appointing her. But the Court held that Article 164(4) could not be divorced from other provisions of the Constitution. Certain qualifications have to be met in order to be appointed as the Chief Minister and unless those qualifications are met, Article 164(4) can not be invoked. A person who is disqualified to even be a member of the House did not possess any right to be elected even if it reflects the will of the people because the will of the people enshrined in the Constitution of India is supreme.
S.R. Chaudhuri v. State of Punjab 2001[9]
Shri Tej Parkash Singh was appointed as a Minister in the State of Punjab and failed to get elected to the Legislative Assembly within six months and resigned. During this period, there was a change in the leadership of the Assembly and Tej Parkash Singh was reappointed as a Minister under the new Chief Minister. This reappointment during the same Legislature was questioned as being against the provisions of the Constitution.
Therefore, the issue in this case was can a person who has failed to be elected to the Legislature within six months of appointment be reappointed in the same Legislature?
The argument of the respondent was that the Article does not expressly prohibit reappointment, upon plain reading, repeatedly even in the same Legislature.
It was held that if the person fails to get elected even after the grace period of six consecutive months, it is indicative of no confidence and his or her reappointment would divert from the scheme and sequence of Article 164 disrupting collective responsibility. This grace period of six months is provided as a privilege which can not be extended beyond six ‘consecutive’ months, i.e., it should be a continuous period and not an intermittent one. Resignation before the expiry of six months does not entitle the candidate to be re-elected for a fresh period of six months because this time period is provided as a one-time slot.
The privilege is per se the Minister and not the Chief Minister and hence a change in the office of Chief Minister does not confer any privilege on him to appoint a non-elected representative again.
If such reappointments are allowed, the spirit of democracy would come into question because this way, a non-elected representative could remain a Minister for the entire term of that Legislative Assembly which is completely against the ideals of a representative democracy.
Therefore, the election of Tej Parkash Singh was held invalid, improper and unconstitutional as it is undemocratic to keep someone in power as a representative repeatedly who has not even been elected by the people.
Election to the Central Cabinet questioned
Election to the Central Cabinet is also subject to the same conditions. A minister who is not a member of either House of the Parliament at the time of appointment has to get elected within six months and if not, such minister shall cease to be a minister[10].
In Harsharan Verma vs. Union of India[11], the appointment of Shri Sita Ram Kesaria to the Cabinet was questioned on the grounds of him not being a member of either House of the Parliament. The appointment of Sita Ram Kesaria was upheld according to the provisions of Article 75(5).
The appointment of Shri H.D. Dewe Gowda as the Prime Minister in 1996 was questioned in S.P. Anand, Indore vs. H.D. Dewe Gowda and Ors.[12]. The appointment was upheld by the Apex Court on the grounds that a member who enjoys the support of the House would take decisions in a democratic manner and such an appointment does not amount to national jeopardy.
In another case, Harsharan Sharma vs. State of U.P.[13], the petitioner argued that Article 164(4) is applicable when a minister has been a member of either House but ceases to be a minister for some reason. Reliance was placed upon the Constitution Bench judgment given in Harsharan Verma vs. Tribhuvan Narain Singh[14] wherein it was held that Article 173(a) does not bring about any material change in the legal position of appointment to the State Legislature. The same was reiterated in Ashok Pandey vs. KM Mayawati[15] as well.
Therefore, the constitutionality of Articles 164(4) and 75(5) has come up in various cases, some of which have been discussed above, and has been upheld provided that democratic principles are not tampered with.
Conclusion – Constitutional Validity
The lineage of Article 164(4) can be traced down to the Government of India Act, 1935. Article 10(2) of the Act read that a minister shall cease to be a minister if at the expiry of six months, he or she is not a member of either Chamber of the Federal Legislature.
The debates of the Constituent Assembly can be taken into account here in order to understand the reasoning behind this provision. Article 144(3) of the draft Constitution corresponds to Article 164(4). An amendment to this provision was proposed by Mr. Mohd. Tahir, that every Minister shall be a member of the Legislative Assembly at the time of appointment. The argument put forward by Mr. Tahir was that this provision is against the spirit of democracy as appointing anyone as a Minister without him or her being elected goes against the system of representation.
Dr. B.R. Ambedkar, on the other hand, supported this provision of the draft Constitution on the ground that an otherwise competent Minister who has lost the confidence of the constituency for some reason or the other can always win it back and that this privilege only extends to the period of six months. If such a member stands by the Cabinet and resigns with the Cabinet, principles of parliamentary government are not being jeopardised.
As long as this provision is not misused by the political parties in order to keep the Minister in power through undemocratic means, it does not call for an amendment. Article 171 of the Constitution empowers the Governor to nominate eminent persons in the field of literature, sciences, art, cooperative movement and social service but this power is not discretionary as provided by Article 151A of the Representation of People Act. This however is a loophole and was recently used in the appointment of Uddhav Thackeray as the Chief Minister of Maharashtra.
The article should not be construed in such a manner that undermines representative democracy because the legitimacy of a democratic republic, as India is, lies in its people choosing the representatives. When the provision is misused, such as in S.R. Chaudhury or Jayalalithaa’s case, essential questions of law come up and are interpreted by the Judiciary in such a manner so as to uphold the values of democracy as iterated above.
Therefore, the author believes that this provision of the Constitution should only be used sparingly and political sovereignty should not be undermined under any condition. The makers of our Constitution have placed reasonable restrictions on the powers of such non-elected Ministers and hence the Ministers are always answerable to the public, whether directly or indirectly.
[1] The Constitution of India, art. 164(1).
[2] Ibid, art. 153.
[3] Ibid, art. 173.
[4] The Constitution of India.
[5] The Constitution of India, art. 189(1).
[6] Ibid, art. 177.
[7] B.R. Kapur vs. State of Tamil Nadu, AIR 2001 SC 3435.
[8] The Representation of the People Act, 1951, s.8A.
[9] (2001) 7 ACC 126.
[10] The Constitution of India, art. 75(5).
[11] 1987 Supp SCC 310.
[12] (1996) 6 SCC 734.
[13] 1985 2 SCC 48.
[14] 1971 1 SCC 616.
[15] AIR 2007 SC 2259.
Author: Indu Kumari from VIPS, New Delhi.
Juris Centre 