Chief Minister appointment - Governor sole judge

SOME VIEWS have been expressed that the power exercised by the Governor in choosing Ms. Jayalalithaa as the Chief Minister of Tamil Nadu is not correct and that it is violative of the constitutional provisions. In particular, in the article ``Discretionary power of Governors'' (TheHindu, June 16), it is stated that in the light of Articles 173(c) and 192 of the Constitution the swearing-in of Ms. Jayalalithaa who is not a member of the Legislative Assembly is violative of the Constitutional Law and Convention. It is necessary to examine the above views in the light of the provisions of the Constitution as interpreted by various decisions of the apex court.

It is a fact that the nomination of Ms. Jayalalithaa to stand as a candidate of the AIADMK for the election to the Assembly was not accepted even though her appeal against her conviction was pending in the High Court and though at about the same time Mr. Balakrishna Pillai's nomination for the election to the Kerala Assembly was accepted by the returning officer there despite his conviction. Ms. Jayalalithaa sought the mandate of the electorate in Tamil Nadu offering herself as the chief ministerial candidate and obtained a massive mandate. The AIADMK Legislature Party chose her as its leader. The Governor after satisfying herself that Ms. Jayalalithaa enjoyed the confidence of the majority in the Assembly appointed her as Chief Minister.

The real question therefore is whether Ms. Jayalalithaa being a non-member of the Legislative Assembly could be appointed as Chief Minister.

Not to be called in question

Article 163(1) of the Constitution 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 functions, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion. Article 163(2) states that if any question arises as respects which the Governor is by or under the Constitution required to act in his discretion, such decision of the Governor shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion. Article 164(1) provides that the Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed on the advice of the Chief Minister. Article 164(2) provides that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. Article 164(4) provides that 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 question whether a non-member of the legislature of a State can be appointed as Chief Minister has been settled 30 years ago by the Supreme Court. In AIR 1971 SC 1331 the Constitution Bench of the Supreme Court held that the appointment of Thribhuwan Narain Singh as Chief Minister of Uttar Pradesh was constitutional though he was not a member of either House of the U.P. legislature at the time of his appointment. After referring to Articles 163 and 164, the Supreme Court held that Clause (1) of Article 164 does not provide ``any qualification for the person to be selected by the Governor as the Chief Minister or Minister and clause (2) makes it essential that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State and that this is the only condition that the Constitution prescribes in this behalf.'' Thus, the Supreme Court has held that the only condition to be satisfied for a person to be appointed as Chief Minister is that he should command the confidence of the House. The Court referred to Article 177(1) and also to the constitutional provisions in England, Australia and South Africa for arriving at the conclusion that a non-member can be appointed as Chief Minister for a period of six months.

A similar question arose regarding the appointment of K. P. Tewari as a Minister in Uttar Pradesh though he was not a member of the State legislature. The Supreme Court referred to its earlier decision in the Thribhuwan Narain Singh case and held that the appointment of K. P. Tewari as a Minister was valid. The Supreme Court on quo warranto petition under Article 32 held in AIR 1985 SC 282 that no material change had been brought about by reason of the amendment of Article 173(a) of the Constitution in the legal position that a person who is not a member of the State legislature may be appointed as a Minister subject, of course, to clause (4) of Article 164.

In July 1987 a question arose whether the appointment of Sitaram Kesri as a Member of the Central Cabinet was legal as he was not a member of either House of Parliament. The Supreme Court held in AIR 1987 SC 1969 that to appoint a non-member of Parliament as a Minister does not militate against the constitutional mechanism nor against the democratic principles embodied in the Constitution. The combined effect of Articles 75(5) and 88 is that a person who is not a member of either House of Parliament can be a Minister for six months. Though he would not have any right to vote, he would be entitled to participate in the proceedings thereof. The court in arriving at the above decision referred to the speech of B. R. Ambedkar in the Constituent Assembly which was as follows:

``Now with regard to the first point namely, that no person shall be entitled to be appointed a Minister unless he is at the time of his appointment an elected member of the House, I think it forgets to take into consideration certain important matters which cannot be overlooked. First is this and 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 member so 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 privilege 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. My second submission is 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 part of the Cabinet and resigns with the Cabinet when he ceases to have the confidence of the House, his membership of the Cabinet does not in any way cause any inconvenience or breach of the fundamental principles on which Parliamentary Government is based. Therefore, this qualification in my judgment is quite unnecessary.''

Appointment of Deve Gowda

In November 1997, a question arose whether the appointment of Mr. H. D. Deve Gowda, as Prime Minister was valid when he was not a member of Parliament. The Supreme Court referred to its earlier decision in AIR 1971 SC 1331 and held that the appointment of Mr. Deve Gowda as Prime Minister was legal and constitutional under Article 75(5) which corresponds to Article 164(4). The court expressed the view that the person who is appointed the Prime Minister is chosen by the elected representatives of the people and can occupy the position only if he enjoys the confidence of the majority of the elected representatives in the Lok Sabha and that the scheme of the Constitution permits such appointment. The Supreme Court further observed as follows:

``Therefore, even though a Prime Minister is not a member of either House of Parliament, once he is appointed he becomes answerable to the House and so also his Ministers and the principle of collective responsibility governs the democratic process. 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. We, therefore, find it difficult to subscribe to the petitioner's contention that if a person who is not a member of the House is chosen as Prime Minister, national interest would be jeoparadised or that he would be running a great risk.''

In Shamsher Singh case AIR 1974 SC 2192 which is a decision of the seven-judge Constitution Bench, Justice K. Iyer held that one of the exceptions to the general rule that the Governor acts always in accordance with the advice of the Ministers is that of the appointment of Chief Minister. The learned judge held that the appointment of Chief Minister by the Governor is restricted by the paramount consideration that he should command a majority in the House.

In AIR 1982 Gowhati 25 it was held that the action of the Governor in appointing a Chief Minister cannot be questioned on the ground that he ought or ought not to have acted in his discretion and that the only check on the action of the Governor is on the floor of the Assembly.

In M.P. Sharma's case (72 C.W.N. p.328) the Calcutta High Court held that it does not see anything in the language of article 164(1), which imposes any restriction or condition upon the power of the Governor to appoint the Chief Minister and that the Governor in making the appointment of the Chief Minister under Article 164(1) acts in his sole discretion and the exercise of the discretion by the Governor cannot be called in question. Referring to this judgment, H.M. Seervai, eminent jurist and authority on Constitutional Law, in his book Constitutional Law of India, Fourth Edition, Volume II, page 2065, has stated that the above decision of the Calcutta High Court is clearly right.

Therefore, the view that the appointment of the present Chief Minister of Tamil Nadu who enjoys the confidence of the majority of the Legislative Assembly is not constitutional is directly contrary to the views specifically expressed by the Supreme Court and also to the views of B.R. Ambedkar in the Constituent Assembly.

In appointing the present Chief Minister, the Governor has been guided by the sole consideration that her party has absolute majority in the Assembly and that she enjoys the confidence of majority in the House. The Governor's action gives effect to the people's mandate. Any other view would have created a constitutional crisis.

The present Chief Minister does possess the qualification under Article 173(c) read with Section 5(c) of the Representation of the People Act, 1951, in that she is an elector in an Assembly Constituency in the State of Tamil Nadu.

Equally, Article 192 of the Constitution referred to in the article published on June 16 is not relevant. The scope of Article 192 has been clearly explained by the Supreme Court in Brundaban's case AIR 1965 SC 1892 referred to in that article itself. In that case the Supreme Court has held that the disqualification referred to in that Article should have been incurred by a person subsequent to the election as a Member of the Legislative Assembly or Legislative Council. Article 192 refers to a subsequent disqualification after election as a member. Disqualification prior to the election as a member will have to be tried by the Election Tribunals. But supervening disqualification incurred after election to the Legislative Assembly is to be tried by the Election Commission though a formal decision has to be pronounced by the Governor.

The scope of Article 192 has been explained by the Supreme Court in the above case as follows:

``In regard to complaints made against the election of members to the Legislative Assembly, the jurisdiction to decide such complaints is left with the Election Tribunal under the relevant provisions of the Act. That means that all allegations made challenging the validity of the election of any member, have to be tried by the Election Tribunals constituted by the Election Commission. Similarly, all complaints in respect of disqualifications subsequently incurred by the members who have been validly elected, have, in substance, to be tried by the Election Commission, though the decision in form has to be pronounced by the Governor.''

It may be noted that the above observations of the Supreme Court in Brundaban's case have been cited with approval by Justice K. Iyer in paragraph 149 of the Judgment in Shamsher Singh's case. Since the present Chief Minister has not yet become a member of the Legislative Assembly, Article 192 has no relevance.

In the writer's view, the decision of the Governor in appointing the present Chief Minister is legal, constitutional and does not violate the basic structure of the Constitution. The decision of the Supreme Court in the cases filed against her in the quo warranto petition in the Supreme Court may be awaited.

S. VADIVELU

Former Law Secretary to the Government of Tamil Nadu

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