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21. Mr Talekar has handed over to us a copy of the notifcation which notifes the Members of Maharashtra Legislative Assembly (Disqualifcation on Ground of Defection) Rules 1986. Mr Talekar has also tendered to us the Constituent Assembly Debates, Volume VIII and extracts thereof of 1st June 1949 on Article 164 (or its equivalent in the draft then under discussion). He has also handed in 9th & 13th September 2019 Vijay Namdeorao Wadettiwar v State Of Maharashtra & Ors | Surinder Mohan Arora & Ors v State of Maharashtra & Ors 10-ASWP6996-19+J.DOC a copy of the Constitution (Fifty-Second Amendment) Act 1985 and the Constitution (Ninety-First Amendment) Act 2003. Thereafter, heavy reliance is placed upon two judgments of the Hon'ble Supreme Court rendered in the case of S.R. Chaudhuri v State of Punjab and Others1 and VR Kapoor v State of Tamil Nadu.2 It is submitted that Article 164(4) is neither a source of power nor an enabling provision for the appointment of a non-legislator as a minister even for a short duration. Secondly, a non-member to be appointed as a minister must possess the qualifcations under Article 173, and must not have sufered a disqualifcation under Article 191. The Governor must reject any proposal to appoint such an unqualifed or disqualifed person as minister. Else a writ of quo warranto can be issued.

37. Then Article 173 sets out the qualifcation for Membership of the State Legislature. A person shall not be qualifed to be chosen to fll a seat in the Legislature of a State unless he is a citizen of India, by clause (a) of Article 173, in the case of seat in Legislative Assembly shall not less than twenty-fve years of age and in the case of a seat in the Legislative Council shall not be less than thirty years of age and possesses such other qualifcations as may be prescribed in that behalf by or under any law made by the Parliament.

63. In B.R. Kapur case [B.R. Kapur v. State of T.N., (2001) 7 SCC 231] , the Constitution Bench ruled that a non-

9th & 13th September 2019 Vijay Namdeorao Wadettiwar v State Of Maharashtra & Ors | Surinder Mohan Arora & Ors v State of Maharashtra & Ors 10-ASWP6996-19+J.DOC legislator can be made a Chief Minister or Minister under Article 164(1) only if he has qualifcations for membership of the Legislature prescribed under Article 173 and is not disqualifed from the membership thereof by reason of the disqualifcations set out in Article 191. Bharucha, J. (as His Lordship then was), speaking for the majority, opined that as the second respondent therein had been convicted for ofences punishable under Sections 13(1)(c), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 and Sections 409 and 120-B of the Penal Code and sentenced to undergo rigorous imprisonment for three years, she was disqualifed under Section 8(4) of the 1951 Act as the said respondent was disqualifed to contest the election. In the said case, she was sworn in as the Chief Minister by the Governor. This Court was moved in by a writ of quo warranto that she was not eligible to hold the post of the Chief Minister. A submission was advanced that it was not open to the Court to read anything into Article 164, for a non-legislator could be sworn in as the Chief Minister, regardless of the qualifcations or disqualifcations. The Court placed reliance on Kesavananda Bharati case [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225] and Minerva Mills case [Minerva Mills Ltd. v.

9th & 13th September 2019 Vijay Namdeorao Wadettiwar v State Of Maharashtra & Ors | Surinder Mohan Arora & Ors v State of Maharashtra & Ors 10-ASWP6996-19+J.DOC Union of India, (1980) 3 SCC 625] and opined that if a non- legislator is made a Chief Minister under Article 164, then he must satisfy the qualifcation for membership of a legislator as prescribed under Article 173. A specifc query was made by the Court that even when the person recommended, was, to the Governor's knowledge, a non-citizen or underaged or lunatic or discharged insolvent, could he be appointed as a Chief Minister? It was urged that he/she could only be removed by the vote of no- confdence in the Legislature or at the next election. Discarding the same, the Court opined that acceptance of such a submission would invite disaster. The Court further ruled that when a person is not qualifed to become a Member in view of Article 173, he cannot be appointed as a Chief Minister under Article 164(1). Be it noted, there was disqualifcation in the Constitution and under the 1951 Act to become a Member of the State Legislature, and hence, the Court, appreciating the text and context, read the disqualifcation into Article 164(1) of the Constitution.