Shruti Desai

May 8, 2021

In normal circumstances we have seen Manmohan Singh did not contest a single general election, but he was appointed as Prime Minister and he was elected in Upper House of Parliament  within six months to continue in office.

Similarly in Maharashtra Uddhav Thackeray Chief Minister Maharashtra  did not contest election but was nominated in Upper House of Assembly.

These are cases where candidate had not contested election.

But in case of West Bengal Mamata Banerjee who recently took Oath as Chief Minister, contested election and lost it. This makes case peculiar. Now for that we need to know the provisions of the Indian Constitution.

Article 164 in The Constitution of India 1949

  1. 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 in the State 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 other 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 so 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

(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 The Advocate General for the State

Article 173 in The Constitution of India 1949

  1. Qualification for membership of the State Legislature 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;

(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

Article 191 in The Constitution of India 1949

  1. Disqualifications for membership

(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State

(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;

(b) if he is of unsound mind and stands so declared by a competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament Explanation For the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State

(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule

Judicial View and Stare Decisis

B.R. Kapoor vs State of Tamil Nadu And Anr five Judges Bench of Supreme Court observed as under:

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 which, although it may be perfectly good, might have annoyed the constituency and he might have incurred the displeasure of that particular constituency.

If purity of administration and otherwise competence to hold the post of Minister were the factors which weighed with the founding fathers to allow a competent person to be appointed as Chief Minister or a Minister for a limited period of six months, who might have been defeated, it is difficult to conceive that a person who is not an elected member, does not possess even the minimum qualification for being chosen as a member or has incurred the disqualification for being chosen as a member could be appointed as a Chief Minister or Minister, on the simple ground that Article 164 is quite silent on the same and the Court cannot import anything into the said Article. Thus on a pure construction of provisions of Article 164 of the Constitution, the discussions made in the Constituent Assembly, referred to earlier, the pre-existing pari materia provision in the Government of India Act, 1935 as well as the discussion of the Joint Committee on Indian Constitutional Reforms referred to earlier, make it explicitly clear that notwithstanding the fact that no qualification or disqualification is prescribed in Article 164(1) or Article 164(4) but such qualification or disqualification provided in Articles 173 and 191 of the Constitution for being chosen as a member will have to be read into Article 164 and so read, respondent No. 2, who had incurred the disqualification under Article 191(1)(e) read with Section 8(3) of the Representation of the People Act, could not have been appointed as the Chief Minister, whatever may be the majority of her party members being elected to the legislative assembly and they elected her as the leader of the party to form the Government.

S.R. CHAUDHURI Vs. STATE OF PUNJAB & ORS three Judges Bench of Supreme Court observed as under:

The individual cannot draw any of the benefits of an MLA without getting elected. All these disabilities also clearly go to suggest that ’six months clause’ in Article 164(4) cannot be permitted to be repeatedly used for the same individual without his getting elected in the meanwhile. It would be too superficial to say that even though the individual Minister is a person who cannot even win an election by direct or indirect means, he should be permitted to continue as a Minister for a period beyond six months, without being elected at all and represent the electorate which has not even returned him!! It would be subversive of the principle of representative government and undemocratic. It would be perversion of the Constitution and even a fraud on it. Obligation of the judiciary is to administer justice according to law but the law must be one that commands legitimacy with the people and legitimacy of the law itself would depend upon whether it accords with justice. Articles 164(1) and 164(4) have therefore, to be so construed that they further the principles of a representative and responsible government. The legitimacy of the law would be to ensure that the role of the political sovereign – the people – is not undermined. All Ministers must always owe their power, directly or indirectly, to them, except for the short duration as envisaged by Article 164(4). The interpretation, therefore, must be such that expectation of the Founding Fathers and constitutionalists are fulfilled rather then frustrated. The former Chief Justice of India, Shri M.N. Venkatachaliah in his Foreword to the “Constitution of Jammu & Kashmir – Its Development and Comments” (Third Edition – 1998) said: “The mere existence of a Constitution, by itself, does not ensure constitutionalism. What are important are the political traditions of the people and its spirit and determination to workout its constitutional salvation through the chosen system of its political organisation.


Considering Stare Decisis  the appointment of Chief Minister of West Bengal is Void- abinitio and may not be qualified to continue after six months of stop gap arrangement.

Shruti Desai

7th May,2021

JUDICIAL ACTIVISM AFFECTING ORIGINAL SCOPE OF DUTIES? An analysis based on Article 138 of the Constitution :


  1. Reply
    comment HL Rai says

    Nice explanation and analysis of wide import

    • Reply
      comment Shruti Desai says

      Mr.H.L.Rai, Thank you for appraisal.
      Stay connected.
      All the Best

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