Judgment

ORDER :- The petitioner has filed this petition under Article 32 of the Constitution praying for the issue of a writ in the nature of quo warranto to the respondent K. P. Tewari who has been appointed in November, 1984 as a Minister of the Government of Uttar Pradesh under Article 164(1) of the Constitution by the Governor of the State of Uttar Pradesh even though he (K. P. Tewari) is not a member of either House of the State Legislature.

2. The petitioner who claims to be a votary of pristine democracy and constitutionalism and a crusader against any person who has not been elected to the State Legislature assuming the office of a Minister has argued this case in person with unabated enthusiasm. It is stated that this is the ninth in the series of cases filed by him over a period of twenty-five years in his attempt to prevent erosion of the Executive responsibility to the Legislature.

3. In Har Sharan Verma v. Tribhuvan Narain Singh, AIR 1971 SC 1331 which had been filed by the petitioner himself, a Constitution Bench of this Court has held that the appointment of a person as Chief Minister cannot be challenged on the ground that he was not a member of the Legislature of a State at the time of appointment. The grievance of the petitioner against that judgment, is that this Court had not considered the effect of the amendment of Article 173(a) of the Constitution by the Constitution (Sixteenth) Amendment Act, 1963.

4. The petitioner contends more pointedly in this cage that after the amendment of Article 173 of the Constitution by the Constitution (Sixteenth) Amendment Act, 1963, it is not open to the Governor to appoint a person who is not a member of the Legislature of the State as a Minister and that Article 164(4) of .the Constitution would only be applicable to a person who has been a Minister but who ceases to be a member of the Legislature for some reason such as the setting aside of his election in any election petition.

5. Article 173 before it was amended by the Constitution (Sixteenth) Amendment Act,1963 read as :

173. A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he -

(a) is a citizen of India;

(b) is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of age and, in the case of a seat in the Legislative Council, not less than thirty years of age; and

(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament."

6. After its amendment clause (a) of Article 173 of the Constitution now reads thus :

173. A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he -

(a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out; for the purpose in the Third Schedule;............"

7. By the Sixteenth Amendment clause (a) of Article 173 of the Constitution is amended by the addition of a clause which Art. 173(a) as amended requires a candidate at an election to the Legislature to make and subscribe before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule to the Constitution. The said form of oath or affirmation which a candidate at an election to the Legislature of a State should make and subscribe (which was also introduced by the Sixteenth Amendment in the Third Schedule to the Constitution) reads :

"Form of oath or affirmation to be made by a candidate for election to the Legislature of a State :-

"I, A.B. having been nominated as a candidate. to fill a seat in the Legislative Assembly, (or Legislative Council), do swear in the name of God that I will bear true

solemnly affirm

faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India."

8. Earlier it was only aft