Setting the limits

The Supreme Court judgment holding a non-legislator's re-appointment as Minister beyond six months in Punjab as invalid has its echoes in Tamil Nadu.

MANY observers would be tempted to interpret the Supreme Court judgment in S.R. Chaudhuri vs State of Punjab & Others, delivered on August 17, as a warning to Tamil Nadu Chief Minister Jayalalithaa against seeking to invoke Article 164(4) of the Constitution to secure another term of six months if and when her current grace period expires in November, without getting elected to the Assembly.

According to Article 164(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. The then Governor of Tamil Nadu, M. Fathima Beevi, appointed Jayalalithaa Chief Minister following the landslide victory of her party, the All India Anna Dravida Munnetra Kazhagam (AIADMK), in the State Assembly elections in May and her election as the leader of its legislature party. Jayalalithaa is not an elected member of the Assembly: her nomination papers were rejected on the grounds of her conviction and sentencing in a corruption case. The Governor appointed her Chief Minister under Article 164(4).

In its present judgment, the Supreme Court has held that it would amount to subverting the Constitution if it permits an individual, who is not a member of the legislature, to be appointed a Minister for a second term of "six consecutive months" without himself/herself getting elected to the legislature in the meanwhile. The court ruled that Article 164(4) is at best in the nature of an exception to the normal rule of only members of the legislature being Ministers, with its effectiveness restricted to a short period of six consecutive months. The court ruled: "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 re-appointing the individual as a Minister, without his securing the confidence of the electorate in the meanwhile."

The ruling, which has been widely hailed as being in consonance with the principles of representative democracy, was given by a Bench consisting of Chief Justice A.S. Anand, Justice R.C. Lahoti and Justice K.G. Balakrishnan. The case related to the re-appointment of Tej Prakash Singh, a Minister in Punjab, by Chief Minister Rajinder Kaur Bhattal in November 1996. Tej Prakash Singh, who was appointed Minister in September 1995 on the advice of Bhattal's predecessor, Harcharan Singh Brar, had to quit as Minister in March 1996, following his inability to get elected to the State legislature.

The petitioner, S.R. Chaudhuri, challenged the appointment being made for a second time during the term of the same legislature, without the Minister being elected as its member. He pointed out that it was violative of constitutional provisions and therefore bad in law. A Division Bench of the Punjab and Haryana High Court, in its order given in December 1996, dismissed Chaudhuri's writ petition without issuing notices to the respondents. Chaudhuri appealed against the order in the Supreme Court, which has now allowed his appeal.

The Supreme Court held that the re-appointment of Tej Prakash Singh as a Minister with effect from November 23, 1996, after he had resigned from the Council of Ministers on March 8, 1996, during the term of the same Legislative Assembly, without getting elected in the meanwhile, was improper, undemocratic, invalid and unconstitutional. The court set aside his re-appointment, though it is of no consequence now. The Supreme Court justified its dealing with the issue by stating that the question it raised was important. The court, however, added, in order to avoid the re-opening of settled matters, that its judgment would not render as bad or invalid only on account of his re-appointment, any order made or action taken by Tej Prakash Singh as Minister.

How does this judgment apply to Jayalalithaa? There is nothing to show - apart from assumptions and speculations - that she is contemplating seeking re-appointment as Chief Minister at the end of her current term.

Significantly, the court declined to express its opinion on whether a non-legislator can be appointed a Minister, if on the date of such appointment he or she suffers from a constitutional or statutory disqualification to contest the election within the next six months. It said that the issue was not directly related to the present case. To many observers, Article 164(4) is not intended to deal with the appointment as Minister of someone who suffers from a constitutional or statutory disqualification to be chosen as a member of the legislature. As Jayalalithaa's nomination to contest elections was rejected by four Returning Officers before the State Assembly elections, the argument is that she suffered disqualification under the Representation of the People Act, and the relevant constitutional provisions and therefore the Governor should not have appointed her under Article 164(4).

It is useful to consider the Supreme Court's interpretation of Article 164(4) in this case. To hold that Tej Prakash Singh's re-appointment as Minister was unconstitutional, the court relied mainly on Constituent Assembly Debates (CAD). During the debate on the Draft Article 144(3), which corresponds to Article 164(4), Mohammed Tahir, a member, proposed an amendment that a Minister shall, at the time of his being chosen as such, be a member of the Legislative Assembly or Legislative Council of the State as the case may be.

Dr. B.R. Ambedkar, who opposed the amendment, argued that a person who was otherwise competent could be appointed a Minister on the assumption that he would be able to get himself elected either from the same constituency where he might have lost or from another constituency. "After all the privilege that is permitted is a privilege that extends only for six months. It does not confer a right to that individual to sit in the House without being elected at all," Ambedkar said, justifying the first six-month reprieve for unelected Ministers. Ambedkar also opposed the demand to make the elective element mandatory for Ministers, claiming that a nominated Minister does not violate either the principle of collective responsibility or the confidence of the House. The Assembly then negatived the proposed amendment.

The Supreme Court thus suggested that the framers of the Constitution did not visualise that a non-legislator could be repeatedly appointed Minister for a term of six months each time, because such a course struck at the very root of parliamentary democracy. The court did not agree that the plain language of Article 164(4) does not expressly prohibit the re-appointment of the Minister, without his or her being elected, repeatedly during the term of the same legislature. The court explained: "Constitutional provisions are required to be understood and interpreted with an object-oriented approach. A Constitution must not be construed in a narrow and pedantic sense. The words used may be general in terms but, their full import and true meaning has to be appreciated considering the true context in which the same are used and the purpose which they seek to achieve."

The judgment further said: "It is a settled position that debates in the Constituent Assembly may be relied upon as an aid to interpret a constitutional provision because it is the function of the court to find out the intention of the framers of the Constitution. The debates clearly indicate the 'privilege' (to be a Minister without being a member of the legislature) to extend 'only' for six months."

Therefore, it is entirely logical and consistent with the judgment to rely on the CAD to find whether the appointment of Jayalalithaa as Chief Minister, despite her conviction by the trial court in a corruption case, was valid. It may be of interest to know - although the court had no occasion to cite this - that a motion for amending Clause 61-2E of the Draft Constitution was moved by Prof. K.T. Shah to the effect that no one should be appointed Minister or Deputy Minister or Parliamentary Secretary, who had been convicted for treason, or for any offence against the sovereignty, security, or integrity of the State, or any offence involving moral turpitude and corruption and liable to a maximum punishment of two years' rigorous imprisonment (CAD, Volume VII, December 30, 1948, page 1146).

Ambedkar, while disagreeing with the need for this amendment, said: "I think this is a case which may eminently be left to the good sense of the Prime Minister or to the good sense of the legislature with the general public holding a watching brief upon them." The amendment was rejected by the Assembly. Obviously, the framers of the Constitution did not visualise any powers to the Governor or the President to refuse to appoint a Minister or a Chief Minister because a trial court had earlier convicted him or her.

The judgment makes a very pertinent point, while justifying the appointment of a Minister who is not a member of the legislature. The court expressed its agreement with the earlier judgment in S.P. Anand, Indore vs H.D. Deve Gowda and Others (1996-6 SCC 734), in which it had stated: "Even if a person is not a member of the House, if he has the support and confidence of the House, he can be chosen to head the Council of Ministers without violating the norms of democracy, and the requirement of being accountable to the House would ensure the smooth functioning of the democratic process."

What happens if a Minister or a Chief Minister fails to become a member of the legislature within six months of his or her appointment, but continues to have the support and confidence of the House? The Supreme Court perhaps had no occasion to consider this issue, given the limited context offered by the Punjab case, but the question assumes importance in the case of Jayalalithaa.

All said, the judgment suffers from a serious inconsistency. After dwelling at length on how Article 164(4) was justified and was necessary to enable non-legislators to become Ministers, Prime Ministers or Chief Ministers, albeit for a limited period of six months, within which period they should get elected to the legislature concerned, the Bench concluded by making a case for restricting the appointment of Ministers from among the members of the legislature. It said: "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 and Kashmir may require some serious consideration by Parliament, for adoption, notwithstanding the statement of Dr. Ambedkar against incorporation of such a restriction either in Article 164(1) or in Article 75(1)."

Section 38 of the Constitution of Jammu and Kashmir says the Governor may on the advice of the Chief Minister appoint from amongst the members of either House of the legislature such number of Deputy Ministers as may be necessary. Although there is no corresponding provision in the Constitution of India, the Bench was apparently inclined to reverse its appreciation of the intention of the framers of the Constitution as reflected in the CAD, simply because of the Punjab case. It could either be interpreted as a sign of the court's helplessness or its inability to make out a coherent case against re-appointment of unelected Ministers.