Document Fragment View

Matching Fragments

A Constitution Bench of this Court had occasion to consider whether a person who is not a member of either House of the State Legislature could be appointed a Minister of State and this question was answered in the affirmative on a true interpretation of Articles 163 and 164 of the Constitution which, in material particulars, correspond to Articles 74 and 75 bearing on the question of appointment of the Prime Minister. In that case, Shri T.N. Singh was appointed the Chief Minister of Uttar Pradesh even though he was not a member of either House of the State Legislature on the date of his appointment. His appointment was challenged in the High Court by way of a writ petition filed under Article 226 of the Constitution. The High Court dismissed the Writ Petition but granted a certificate under Article 132 of the Constitution. That is how the matter reached this Court.

Now, Article 164(4) provides that 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. It was, however, urged that on the plain language of the said provision, it is obvious that it speaks of appointment of a Minister who is a member of the State Legislature but who loses his seat at a later date in which case he can continue as a Minister for a period of six months during which he must be re-elected or otherwise, must vacate office. Interpreting the said clause in the context of Article 163 and other clauses of Article 164, this Court held that Clause 4 of Article 164 had an ancient lineage and there was no reason to whittle down the plain thrust of the said provision by confining it to cases where a person being a member of the Legislature and a Minister, for some reason, loses his seat in the State. Accordingly, the decision of the High Court was affirmed. See Har Sharan Verma v. Shri Tribhuvan Narain Singh, Chief Minister, U.P. and Another, (1971) 1 SCC 616.

In order to appreciate the contention raised in this petition, and to determine if the aforesaid decision on which the learned Attorney General relied has any bearing on the point at issue in the present petition, it would be advantageous to read Articles 74 and 75 in juxtaposition with Articles 163 and 164 of the Constitution :

74. Council of Ministers to aide and advise President.-- (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:

(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.

When we compare Articles 74 and 75 with Articles 163 and 164 the first point of difference is that while the former deal with the President and the Prime Minister, the latter deal with the Governor and the Chief Minister. Article 74(1) and Article 163(1) are substantially the same except that the sentence beginning with `except' and ending with 'discretion', special to the Governor's function, is not to be found in Article 74(1). The proviso to Article 74(1) which grants a special privilege to the President is not to be found in Article 163(1) whereas clause (2) of Article 163 is not to be found in Article 74. Clause (2) to Article 163 is a corollary to the exception clause in Article 163(1) and has no relevance to the issue on hand. Article 74(2) and Article 163(3) are verbatim the same.