HARISHCHANDRA L. PATEL v. MADHAVSINH SOLANKI — 1990 DIGILAW 2 (GUJ)

A. P. RAVANI, J. ( 1 ) APPOINTMENT of respondent No. 1 as Chief Minister of the State of Gujarat is not constitutionally valid contends the petitioner in this petition filed by way of public interest litigation. After declaration of the results of the general election to the Lok Sabha the Chief Minister of the State of Gujarat submitted his resignation. Respondent No. 1 has been appointed as Chief Minister of the State of Gujarat and he has assumed office of Chief Minister with effect from 10/12/1989 The petitioner who is a practising advocate in this High Court has challenged the legality and validity of the appointment of respondent No. 1 as Chief Minister of the State of Gujarat by filing this petition by way of public interest litigation. in his submission respondent No. 1 is not a member of the Legislative Assembly of the State and therefore he cannot-be appointed as Chief Minister. Petitioner contends that his interest is to see that there is lawfully constituted Government in the State of Gujarat. Therefore he prays for a writ of quo warranto to be issued against respondent No. 1 Shri Madhavsinh Solanki Chief Minister of the State of Gujarat. Though several factual and legal averments have been made in the petition and several aspects have been dealt with in the memo of petition the petitioner at the time of hearing of the petition has confined his arguments to the following points only: (1) That there is no chance of any by-election to be held within a period of six months and it is practically impossible for respondent No. 1 to be elected as a member of the State Legislature within a period of six months and admittedly he is not a member of the Legislative Assembly of the State. Therefore in view of the provisions of Art. 164 (4) of the Constitution of India respondent No. 1 cannot be appointed as Chief Minister of the State of Gujarat. (2) Article 164 (4) deals with the appointment of Ministers. It does not include Chief Minister. Therefore it is submitted that in case of Chief Minister the only person who is a member of the Legislative Assembly can be appointed as Chief Minister while the person who is not a member of the State Legislative Assembly may be appointed as Minister. It does not include Chief Minister. Therefore it is submitted that in case of Chief Minister the only person who is a member of the Legislative Assembly can be appointed as Chief Minister while the person who is not a member of the State Legislative Assembly may be appointed as Minister. (3) Respondent No. 1 is a sitting Member of Parliament (Member of Rajya Sabha ). That in view of the relevant provisions of the Constitution and the provisions of the Representation of the People Act 1951 double membership in both the houses of Parliament or in either house of Parliament and in a State Legislative Assembly is not permissible. Therefore also appointment of respondent No. I as Chief Minister is illegal and void. Except the aforesaid three points no other point is urged by the petitioner at the time of hearing of the petition. Therefore only these points are required to be dealt with. ( 2 ) MR. Y. N. Oza learned Advocate sought permission of the Court to appear as intervenor on behalf of Shri Ashok C. Bhatt member of the Legislative Assembly and Whip of the Bharatiya Janata Party in the Gujarat State Legislative Assembly. He has been granted permission to appear on behalf of Shri Ashok C. Bhatt as intervenor. Mr. Oza while supporting the petitioner on the aforesaid points has emphasized and reiterated that there is no possibility of by-election being held to the Legislative Assembly within a period of six months. Therefore appointment of respondent No. 1 as Chief Minister should be invalidated. ( 3 ) THE petitioner in substance prays that a writ of quo warranto be issued against respondent No. 1 who is holding the office of Chief Minister of the State of Gujarat. For maintainability of the petition for writ of quo warranto it is required to be seen that the respondent is holding a public post; the post held by respondent should be substantive in character and it should have been created either by statue or under the provisions of the Constitution. The respondent must be asserting his claim to the office. After these conditions are fulfilled it is required to be examined as to whether the respondent is legally qualified to hold the office or to remain in the office. The respondent must be asserting his claim to the office. After these conditions are fulfilled it is required to be examined as to whether the respondent is legally qualified to hold the office or to remain in the office. In the instant case there is no dispute as regards the nature of office its substantive character and the creation thereof under the Constitution. Therefore the short question required to be determined is in the appointment of respondent No. 1 as Chief Minister of the State of Gujarat constitutionally valid ? Or has he incurred any disqualification so as to forfeit his claim to hold the office ? ( 4 ) THE points raised by the petitioner be examined:article 163 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 function. The Governor is required to exercise his function as per the aid and advise of the Council of Ministers except insofar as he is by or under the Constitution required to exercise his functions or any of them in his discretion. Article 164 reads as follows: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 is the States 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 ether 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 to 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. (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 is the Second Schedule. ( 5 ) READING the entire Art. 164 it is evident that it is not necessary the Governor to inquire as to whether a person who is to be appointed as Minister or Chief Minister is a member of the State Legislative Assembly or not. Article 164 (4) enjoins a duty upon a Minister who is not a member of the Legislature of the State to vacate the office at the expiry of six consecutive months. It is nowhere provided in the Constitution that the Article shall stand repealed for a period of six months before the expiry of the term of the Legislature. If the argument of the petitioner is accepted it would mean that whenever it is not possible to hold election within a period of six months from the date of appointment of a person who is not a member of the State Legislature provisions of the Article shall not remain in operation at all. The otter alternative would be that in such an eventuality it should be read is the Article that only duly elected member of the State Legislature can be appointed as a Minister or Chief Minister during the last six months of the term of the State Legislature. If this alternative interpretation is accepted it would amount to re-writing the Constitution by adding proviso to Art. 164 which should read provided however during the last six months of the term of the State Legislature only a member of the State Legislature shall be eligible to be appointed as Minister. I am afraid it is not permissible for the Court to add any such words to the provisions of the Constitution. Even in respect of statutory provisions such course cannot ordinarily be adopted by the Court. In case of constitutional provisions if such course is adopted it would amount to amending the Constitution by the Court. I am afraid it is not permissible for the Court to add any such words to the provisions of the Constitution. Even in respect of statutory provisions such course cannot ordinarily be adopted by the Court. In case of constitutional provisions if such course is adopted it would amount to amending the Constitution by the Court. Such exercise would be patently illegal and unconstitutional and beyond the powers of the Court. Therefore the argument cannot be accepted. ( 6 ) THE petitioner submitted that to make constitutional provision consistent with the basic norms of democratic parliamentary form of Government Art. 164 should be read down and it should be read that any person who is appointed as Chief Minister should been member of the State Legislature. The enabling provision contained in Art. 164 (4) should be confined to Ministers only and Clause (4) of Art. 164 should not be read so as to include Chief Minister ( 7 ) THE submission may be examined. What are the basic norms of democratic parliamentary form of Government ? It is certainly not the basic norm of parliamentary form of Government that a Minister should always be an elected representative of the people. Under our Constitution it is not necessary that a Minister either that of a State or that of the Central Government should always be an elected representative of the people. The provisions with regard to Chief Minister Ministers and the Governors are contained in Chapter-II of Part VI of the Constitution. It deals with the Executive. Executive power of the State vests In the Governor (Art. 154 ). The Governor is required to exercise his functions with the aid and advice of the Council of Ministers with the Chief Minister at its bead (Art. 163 (1) ). Reading the aforesaid Articles together with the corresponding constitutional provisions contained in Art. 53 and Art. 74 of the Constitution of India relating to Union Executive it is evident that the Governor or the President as the case may be is the normal executive head of the Government. Real executive powers are vested in the Ministers of the Cabinet. (See: RAM JAWAVA KAPUR V. STATE OF PUNJAB REPORTED IN AIR 1955 SC 549 (AT P. 556) and U. N. R. RAO V. SMT. INDIRA GANDHI REPORTED IN AIR 1971 SC 1002 ). This is the settled legal position. Real executive powers are vested in the Ministers of the Cabinet. (See: RAM JAWAVA KAPUR V. STATE OF PUNJAB REPORTED IN AIR 1955 SC 549 (AT P. 556) and U. N. R. RAO V. SMT. INDIRA GANDHI REPORTED IN AIR 1971 SC 1002 ). This is the settled legal position. Functions to be exercised by Governor under Art. 164 are not to be performed by him as per his discretion. There is no such mandate of the Constitution. He is required to go by the wishes of the majority of the elected representatives of the people. ( 8 ) IF the Chief Minister is not required to be a member of the State Legislature how then the democratic principles are complied with ? This question may legitimately be asked and it does require examination. It is not the Governor in the case of States (and not the President in the case of Union Government) who select the Chief Minister (or the Prime Minister ). It is the privilege of the representatives of the people i. e. the Member of the State Legislative Assembly or the members of the Parliament in the Lok Sabha to choose their leader. A person who may be selected as leader by the chosen representatives of the people can never be the choice of the Governor or that of the President. The Governor or the President makes the formal appointment of the Chief Minister and that of the Prime Minister and other Ministers. They the Governor and the President being the formal or constitutional executive head of the Government are mere instruments in making formal appointment. When they perform this task they merely give concrete form to the will expressed by the people through their elected representatives either in the State Legislature or in the Parliament. ( 9 ) THE Constitution does not provide that the elected representatives of the people shall select their leader only from amongst the members of the State Legislature When there is no such provision in the Constitution the Governor as the formal Constitutional head of the State Executive has to discharge his constitutional duty by calling the leader of the majority party selected by the elected representatives of the people and appoint him as Chief Minister. It would not be open to the Governor also to say that the elected representatives of the people shall select or choose their leader only from amongs the members of the State Legislature. If such course is adopted by the Governor or by the Court and if it is insisted that the elected representatives of the people should select or choose their leader only from amongst themselves it would amount to whittling down the scope of their choice for which there is no provision in the Constitution. One may say that it would amount to trenching upon the will of the people which should be un-democratic and therefore impossible. ( 10 ) IT may be argued that if the interpretation canvassed by the petitioner is negatived it may happen that Chief Minister and Ministers none of whom may be members of the State Legislature be selected and appointed as Ministers. Such argument was advanced before the Supreme Court in the case of H. S. VERMA V. TRIBUNAL NARAIN SINGH REPORTED IN AIR 1971 SC 1331 . Para 5 of the judgment Enter alia reads as follows:. . . IT would be possible for a Governor to appoint a Chief Minister and Ministers none of whom are Members of the State Legislature. Ho said that this could not have been contemplated. But if the Legislative Assembly of the State to whom this Council of Ministers would be collectively responsible endorses this unlikely council of Ministers there is nothing in the constitution which would make this appointment illegal. ( 11 ) IN above view of the matter selection and appointment of an individual as Chief Minister or as Minister who is not a member of the State Legislature is not illegal. Then the question may be posed: how then is the basic principle of democratic form of Government regarding accountability to the people is ensured ? Answer to the question is to be found in Art. 164 (2) which provides that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. The moment Council of Ministers loses confidence of the Assembly the Ministers forfeit their right to hold the office. Answer to the question is to be found in Art. 164 (2) which provides that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. The moment Council of Ministers loses confidence of the Assembly the Ministers forfeit their right to hold the office. Thus the Chief Minister who is no one else but the chosen leader of the Members of the majority party in the Assembly can hold the office so long as he retains confidence of the representatives of the people who have selected or chosen him. ( 12 ) THE provisions of the Constitution are required to be read and understood by keeping in mind the day-to-day functioning of the constitutional mechanism and the basic democratic norms underlying constitutional provisions. The constitutional provisions like all other statutory provisions cannot be interpreted by superfluous reading of a clause in an article or an article in isolation. The constitutional provisions have got to be understood and interpreted in the background of the functioning of the entire constitutional mechanism and by keeping in mind the wider perspective of the democratic norms. Reading and understanding the constitutional provisions in the aforesaid manner if the argument advanced by the petitioner is accepted it would lead to a situation whereby the will of the people expressed through their chosen representatives shall be whittled down end the Governor who is not the elected representative of the people will be in a position to negative and/or nullify the will of the people. This can never be the intention of the framers of the Constitution. For the aforesaid reasons the argument advanced by the petitioner that the Chief Minister should be selected from amongst the members of the Legislative Assembly has got to be rejected. ( 13 ) THE argument may be examined from yet another angle. Article 164 does not provide that an individual who can be elected and who shall be elected as Member of the State Legislature alone can be appointed as Chief Minister. ( 13 ) THE argument may be examined from yet another angle. Article 164 does not provide that an individual who can be elected and who shall be elected as Member of the State Legislature alone can be appointed as Chief Minister. To accept the argument of the petitioner would amount to reading the following conditions in the constitutional provisions: (I) that whenever a person who is not a member of the State Legislature is to be appointed as Minister or Chief Minister he shall get himself elected as Member of the State Legislature within a period of six months from the date of his appointment; (ii) that such person shall be appointed as Minister or Chief Minister only when there is likelihood of a by-election to the State Legislature; (iii) that in case of declaration of such by-election within a period of six months such person shall contest the election and that such person shall give an undertaking to that effect; (iv) such a person shall also be enjoined with a duty not only to contest the election but he must also succeed in the election and get elected by the people. The Constitution does not provide for any such obligations to be imposed upon an individual who is to b appointed as Chief Minister or Minister and who is not a member of the State Legislature. The only obligation enjoined and cast upon the individual who is not a member of the State Legislature is that within a period of six months from the date of his appointment as Minister or Chief Minister if he wants to continue as Minister or Chief Minister he must get himself elected; otherwise he shall cease to be a Minister or Chief Minister meaning thereby he shall vacate the office as Chief Minister or Minister. Thus membership of the State Legislature is an obligation to be fulfilled it the end of six months provided such a person is desirous to continue in the office of the Minister or Chief Minister after the expiry of period of six months. That which is an obligation to be fulfilled at the expiry of six months from the date of appointment cannot be considered a pro-requisite qualification. That which is an obligation to be fulfilled at the expiry of six months from the date of appointment cannot be considered a pro-requisite qualification. ( 14 ) AT the time of appointment all that is required to be seen is as to whether such an individual is fulfilling the basic qualifications for being selected and appointed as a Minister. It may We noted that these qualifications are not expressly laid down in the constitution But these qualifications may be read by necessary implications inasmuch as a person who is to be appointed as Minister or Chief Minister should be in a position to contest the election if such an eventuality arises. Therefore at the most what is required to he seen is as to whether he is disqualified for registration in the electoral roll as provided in Sec. 16 of the Representation of the People Act 1950 Section 16 of this Act inter alia provides that a person shall be disqualified for registration in an electoral roll if he: (A) is not a citizen of India or (b) is of un-sound mind and stands so declared by a competent Court; or (c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections. Section 19 of the Representation of the People Act 1950 provides for conditions of registration to the effect that such a person should not be less that twenty-one years of age on the qualifying date and he should be an ordinary resident in the constituency in which his namo in to be registered as voter. It is not even the case of the petitioner that respondent No. 1 is lacking in any of the basic qualifications as indicated hereinabove. ( 15 ) THE argument based on literal reading and interpretation of the provisions of Art. 164 (4) may be examined. It is contended that the term Minister occuring in Art. 164 (4) would not include Chief Minister. If the interpretation is accepted the implementation of Art. 164 itself would be impossible. If the term Minister used in the Article is not intended to include Chief Minister then the Chief Minister would be exempted from the constitutional duty to take oath of office. If the interpretation is accepted the implementation of Art. 164 itself would be impossible. If the term Minister used in the Article is not intended to include Chief Minister then the Chief Minister would be exempted from the constitutional duty to take oath of office. He shall not even cease to be a Minister if after his appointment his election to the Legislature is set aside or that he is not re-elected within six months. Moreover the salary and allowances of the Chief Minister unlike those of Ministers will not be under the control of the Legislature of the State as in the case of other Ministers Such interpretation would lead to absurd results. Hence the same cannot be accepted. Similar question arose before Allahabad High Court in the case of HAR SHARAN VARMA V. CHANDRA BHAN GUPTA and ORS. REPORTED IN AIR 1962 All 301 . The learned single Judge of the Allahabad High Court has interpreted the term Minister occuring in Art. 164 as to include the phrase the Chief Minister in the same. 1 am in respectful agreement with the interpretation placed by the learned single Judge of the Allahabad High Court. ( 16 ) IT is contended that respondent No. 1 is a member of Rajya Sabha and therefore he cannot be a Minister in the State of Gujarat. What is prohibited under Sec. 70 of the Representation of the People Act 1951 is dual membership. in either House of Parliament as well as in State Legislature. In case a person is elected to more than one house he is required to vacate his seat within prescribed time limit. No such contingency arises here. Respondent No. 1 has not become a member of the State Legislature. On becoming the Minister in the State of Gujarat he does not incur any disqualification to continue as a Member of Parliament in Rajya Sabha. Whether to continue as Member of Parliament in Rajya Sabha and also to hold the office of Chief Minister in the State of Gujarat is a question to be decided by respondent No. 1 and by his party members. It may be considered proper or may not be considered proper by the political party and by members of the political party to which respondent No. 1 belongs. It may be considered proper or may not be considered proper by the political party and by members of the political party to which respondent No. 1 belongs. Propriety or impropriety of a particular position or situation is not a question to be decided by this Court. If it is legally permissible to respondent No. 1 to receive salary and benefits as a Member of Parliament in Rajya Sabha while holding the post of Chief Minister and receiving emoluments for the post of Chief Minister he would not incur disqualification to continue as Chief Minister on this count Similarly whether he will be required to devote his full time for the discharge of the duties as Chief Minister and therefore he cannot continue as Member of Parliament in Rajya Sabha is also not a question to be decided by the Court. There is nothing in the constitutional provisions which would disqualify a person to hold the office of Chief Minister in the State while continuing the membership of Parliament in either House i. e. Lok Sabha or Rajya Sabha. Whether a person would be able to discharge his duties both as a Member of Parliament and as Chief Minister in the State depends on various factors. Such questions cannot be a matter of judicial review by the Court or at any rate it is not the question to be decided by me in this litigation Therefore the argument that respondent No. 1 being a Member of Parliament in Rajya Sabha cannot be appointed as Chief Minister has also no merits and has got to be rejected. ( 17 ) AS indicated hereinabove Shri Ashok C. Bhatt Member of the Legislative Assembly and Whip Bharatiya Janata Party in the Gujarat State Legislature has been permitted to intervene. Learned Counsel for the intervener reiterated the argument that since these is no possibility of by-election being held within a period of six months respondent No. 1 cannot be appointed as Chief Minister. In support of the aforesaid argument he has relied upon a decision of the Supreme Court in the case of HARSHARAN VARMA V. UNION OF INDIA and ANR. REPORTED IN AIR 1987 SC 1969 . In support of the aforesaid argument he has relied upon a decision of the Supreme Court in the case of HARSHARAN VARMA V. UNION OF INDIA and ANR. REPORTED IN AIR 1987 SC 1969 . In para 3 of the judgment there is reference to proposed amendment in the Constitution which reads as follows:no person should be appointed a Minister unless at the time of his appointment he is elected member of the House. The amendment has not been accepted by the Constituent Assembly. Opposing the amendment Dr. Ambedkar has inter alia stated that it is perfectly possible to imagine that a person who is otherwise competent to hold the post of a Minister has been defeated in a constituency for some reason and which although it may be perfectly good might have annoyed the constituency and he might have incurred the displeasure of that particular constituency. It is not a reason why a members competent as that should not be permitted to be appointed a member of the Cabinet on the assumption that he shall be able to get himself elected from the same constituency or from another constituency. After all the privileges that he is permitted is a privilege that extends only to six months. It does not confer a right on that individual to sit in the House being (not ?) elected at all. Relying on the aforesaid part of the speech by Dr. Ambedkar learned Counsel submits that the provisions of Art. 164 (4) are meant for the persons who have contested the election but for one reason or another failed to get elected. In short the argument of the learned Counsel for the intervenor would come to this: Art. 164 (4) provides for back-door entry for the defeated candidates. The speech by Dr. Ambedkar has got to be read in its entirety and in its proper context. In the aforesaid part of the speech Dr. Ambedkar with a view to emphasize the point for rejecting the amendment has given illustration of some competent person being defeated at the general election. But that is not the sole reason why the amendment was opposed. The later part of the speech which has been reproduced in the Supreme Courts decision is also important. Ambedkar with a view to emphasize the point for rejecting the amendment has given illustration of some competent person being defeated at the general election. But that is not the sole reason why the amendment was opposed. The later part of the speech which has been reproduced in the Supreme Courts decision is also important. This part reads as follows: my second submission is this that the fact that a nominated Minister is a member of the Cabinet does not either violate the principle of collective responsibility nor does it violate the principle of confidence because he is a member of the Cabinet if he is proposed to accept the policy of the Cabinet stands pert of the Cabinet and resigns with the Cabinet when be ceases to have the confidence of the House his membership of the Cabinet does not in any way cause any inconvenience or bleach of the fundamental principle on which Parliamentary Government is based. Reading the entire speech of Dr. Ambedkar In proper context there is no scope for whittling down the scope of the Constitutional provision. On the contrary the later part of the passage of the speech of Dr. Ambedkar supports the interpretation that a non-member may be appointed as a Minister and such a course would not be in any way violative of the basic norms of democratic form of Government. Therefore this argument also cannot be accepted. ( 18 ) IT may be noted that learned Counsel appearing for respondent No. 1 has asserted that it is possible to hold by-election before the expiry of the term of the present Assembly. Be that as it may. The question is irrelevant. It may or may not be possible to hold the election before expiry of six months period commencing from the date of appointment of respondent No. 1 as Chief Minister. The question to be examined by the Court is: whether the appointment or respondent No. 1 as Chief Minister is constitutional and legally valid or not ? Once it is held that the appointment of respondent No. 1 as Chief Minister of the State of Gujarat is constitutionally valid all other questions pale into insignificance as far as judicial review by the Court is concerned. ( 19 ) THERE is no substance in the petition. Hence the petition is hereby rejected. Notice discharged with no order as to costs. Notice discharged. ( 19 ) THERE is no substance in the petition. Hence the petition is hereby rejected. Notice discharged with no order as to costs. Notice discharged. .