2001 Supreme(SC) 1127

2001(6) Supreme 201
SUPREME COURT OF INDIA
Dr. A.S. Anand, CJI., R.C. Lahoti and K.G. Balakrishnan, JJ.
S.R. Chaudhuri -Appellant
versus
State of Punjab & Ors. -Respondents
Civil Appeal No. 244 of 1997
Decided on 17-8-2001
Counsel for the Parties :
For the Appellant : R.K. Kapoor, C.S. Ashri, Sumit Kumar, P. Verma, Gurnam Singh Advocate for Anis Ahmed Khan, Advocate.
For the Appellant : Lokesh Kumar and R.S. Suri, Advocates.

VERY IMPORTANT POINT
No non-member (of legislature), who fails to get elected during the period of six consecutive months, after he is appointed as a Minister or while a Minister has ceased to be a legislator cannot be re-appointed as a Minister, without being elected to the legislature after the expiry of the period of six consecutive months.

Headnote:Constitution of India-Articles 164(4), 75(1), 226 and 136-Appointment of respondent 2 (Tej Prakash Singh) for a second time as Minister during the term of same Punjab State Legislature, without being elected as a member of the Legislature-Writ petition to declare it as violative of Constitutional provision and, therefore, bad-Dismissed in limine by DB of Punjab High Court-Whether correct? (No)-Re-appointment held invalid but all acts done before such declaration held valid as a special case in public interest-Appeal allowed accordingly-Case law discussed-Question whether a non-legislator can be appointed as a Minister, if on the date of such appointment, he suffers from a constitutional or statutory disqualification to contest the election within the next six consecutive months left open as not involved in this case. (Para 19)

       Held (After referring to Constitutional provisions) : Thus, we find that this Court, including its Constitution Bench, has consistently taken the view on an interpretation of Article 163, Article 164(1) and Article 164(4) that a person who is not a member of the Legislature, may be appointed a Minister for a short period, but if during the period of six consecutive months he is not elected to the Legislature, he would cease to be a Minister at the expiry of that period. The absence of the expression "from amongst members of the legislature" in Article 164(1) is indicative of the position that whereas under that provision a non-legislator can be appointed as a Chief Minister or a Minister but that appointment would be governed by Article 164(4), which places a restriction on such a non-member to continue as a Minister or the Chief Minister, as the case may be, unless he can get himself elected to the Legislature within the period of six consecutive months, from the date of his appointment. Article 164(4) is, therefore, not a source of power or an enabling provision for appointment of a non-legislator as a Minister even for a short duration. It is actually in the nature of a disqualification or restriction for a non-member, who has been appointed as a Chief Minister or a Minister, as the case may be to continue in office without getting himself elected within a period of six consecutive months. It is not the case of the appellant that respondent No. 2 Shri Tej Prakash Singh suffered from any constitutional or statutory disqualification to contest an election on the date of his first appointment as a Minister or even on the date of his re-appointment as a Minister. The challenge is confined to the issue of re-appointment of the respondent, without getting elected within six consecutive months of his first appointment. In this view of the matter, we have declined an invitation of learned counsel for the appellant to express our opinion on the question whether a non-legislator can be appointed as a Minister, if on the date of such appointment, he suffers from a constitutional or statutory disqualification to contest the election within the next six consecutive months. We are not expressing our opinion on the issue, as it is not directly involved in the present case and the settled practice of this Court is not to express opinion on issues which do not essentially arise in a case under consideration. The issue before us, however, is somewhat different. The issue is : can a non-member, who fails to get elected during the period of six consecutive months, after he is appointed as a Minister or while a Minister has ceased to be a legislator, be reappointed as a Minister, without being elected to the Legislature after the expiry of the period of six consecutive months? This issue was not considered in either of the four cases referred to above - there is no other decided case dealing with the issue brought to our notice either. With a view to consider the issue, it would, therefore, be useful to consider the constitutional scheme governing a democratic parliamentary form of Government and interpret Article 164(1) and 164(4) in that light. (Paras 17, 18, 19 and 20)

       Held (After referring to case law) : We are, therefore, of the considered opinion that it would be subverting the Constitution to permit an individual, who is not a member of the Legislature, to be appointed a Minister repeatedly for a term of "six consecutive months", without him getting himself elected in the meanwhile. The practice would be clearly derogatory to the constitutional scheme, improper, undemocratic and invalid. Article 164(4) is at best only in the nature of an exception to the normal rule of only members of the Legislature being Ministers, restricted to a short period of six consecutive months. This exception is essentially required to be used to meet very extraordinary situation and must be strictly construed and sparingly used. The clear mandate of Article 164(4) that if an individual concerned is not able to get elected to the legislature within the grace period of six consecutive months, he shall cease to be a Minister, cannot be allowed to be frustrated by giving a gap of few days and reappointing the individual as a Minister, without his securing confidence of the electorate in the meanwhile. Democratic process which lies at the core of our Constitution schemes cannot be permitted to be flouted in this manner. It may be of some interest to notice certain provisions of the Constitution of Jammu & Kashmir, 1957. Section 36 of the J & K Constitution corresponds to Article 164(1) of the Constitution of India, with the difference that the expression "the Minister shall hold office during the pleasure of the Governor" is missing from Section 36. This expression has, however, been separately incorporated in Section 39, which provides that all Ministers and Deputy Ministers shall hold office during the pleasure of the Governor. Section 37(2) corresponds to Article 164(4) of the Constitution. Section 38 of the J & K Constitution is, however, a provision which has no corresponding provision in the Constitution of India. This section reads thus:

       "38. Deputy Ministers.-The Governor may on the advice of the Chief Minister appoint from amongst the members of either House of Legislature such number of Deputy Ministers as may be necessary."

       If constitutional provisions of Article 164(1) and 164(4) are permitted to be perverted or distorted in the manner as was done in the present case, Section 38 of the Constitution of Jammu & Kashmir may require some serious consideration by the Parliament, for adoption, notwithstanding the statement of Dr. Ambedkar (supra) against incorporation of such a restriction either in Article 164(1) or in Article 75(1). From the above discussion, it follows that reappointment of Shri Tej Parkash Singh, respondent, as a Minister with effect from 23.11.1996, after his resignation from the Council of Ministers on 8.3.1996, during the term of the same Legislative Assembly, without getting elected in the meanwhile was improper, undemocratic, invalid and unconstitutional. His reappointment is accordingly set aside though at this point of time, it is of no consequence. We have dealt with the issue because of its importance. The Division Bench of the High Court fell in error in dismissing the Writ Petition filed by the appellant in limine. Since we have held that reappointment of Shri Tej Parkash Singh as a Minister in the State of Punjab with effect from 23-11-1996 was invalid and unconstitutional, we consider it appropriate to observe, with a view to avoid reopening of settled matters, that this judgment shall not render any order made or action taken by Shri Tej Parkash Singh, as a Minister, after his reappointment to the Council of Ministers, as bad or invalid only on account of his reappointment as a Minister having been found to be invalid. This appeal, therefore, succeeds and is allowed in the terms indicated above with cost. (Paras 42, 43, 44 and 45)