APPOINTMENT OF A MINISTER

APPOINTMENT OF A MINISTER

Usually, the members of the state legislature, either the legislative assembly or the legislative council, are appointed as ministers. A person who is not a member of either House of the state legislature can also be appointed as a minister. But, within six months, he must become a member (either by election or by nomination) of either House of the state legislature, otherwise he ceases to be a minister.

Article 164. Other provisions as to Ministers -

(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: Provided that in the State of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work

(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State

(3) Before a Minister enters upon his office, the Governor shall administer so him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule

(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

(5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule.

The corresponding provision for the Union is contained in Article 75(5).

IMPORTANT CASES:

In Har Sharan Verma v. Tribhuvan Narain Singh, the appellant challenged the appointment of the respondent, who was appointed as Chief Minister of U.P. on 18-10-1970 and who was not a Member of the legislature at the time of his appointment. The High Court dismissed the writ of quo warranto filed under Article 226 but granted the certificate under Article 132 of the Constitution. A five-Judge Constitution Bench of the Supreme Court interpreted Article 164(4) for the first time. It was contended on behalf of the appellant that Article 164(4) applied only to a person who was already a Minister but for some reason or the other ceases to be a Minister. Such person can continue for 6 months but there cannot be an initial appointment of a non-Member of the legislature of a State as Minister. This contention was negatived by the Constitution Bench. Chief Justice Sikri speaking for a unanimous Constitution Bench, observed as follows:

"It seems to us that Article 164(4) must be interpreted in the context of Articles 163 and 164 of the Constitution. Article 163(1) provides that 'there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except insofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion'. Under Article 164(1), the Chief Minister has to be appointed by the Governor and other Ministers have to be appointed by him on the advice of the Chief Minister. They all hold office during the pleasure of the Governor. Clause (1) does not provide any qualification for the person to be selected by the Governor as the Chief Minister or Minister, but clause (2) makes it essential that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. This is the only condition that the Constitution prescribes in this behalf."

In S.P. Anand v. H.D. Deve Gowda the appointment of Deve Gowda as Prime Minister was challenged on the ground that he was not a Member of Parliament at the time of his appointment. Following the earlier cases, the Supreme Court rejected the challenge and held that a person who is not a Member of either House of Parliament or of either House of State Legislature, can be appointed as a Minister in the Central Cabinet (which would include the Prime Minister) or a Minister in the State Cabinet (which would include a Chief Minister), as the case may be.

Duration for which a non-member may continue as Minister : In S.R. Chaudhuri v. State of Punjab the question that was raised was whether a non-Member of a legislature, who fails to get elected during the period of 6 consecutive months, after he is appointed as a Minister be reappointed as a Minister without being elected to the legislature. The Supreme Court held that the privilege to continue as a Minister for 6 months without being an elected Member is only a one-time slot for the individual concerned during the term of the Legislative Assembly concerned.