Non-legislators and ministerial posts

THE SUPREME COURT has firmly shut the judicial door on non- members of a legislature continuing to occupy ministerial posts beyond six months if they fail to get elected during this period. In doing so, the Court has prevented a possible ambiguity in the Constitution from being exploited to permit non-legislators to hold on to their ministerial posts after the six-month ``grace'' period has lapsed. The ruling, which was delivered by a three- member Bench headed by the Chief Justice of India, Mr. A. S. Anand, is wholly in keeping with the spirit of the Constitution, which was never intended to be subverted to enable non- members of legislatures to occupy ministerial posts indefinitely. The judgment was rendered in the context of a challenge of the legality of the reappointment of Mr. Tej Parkash Singh, son of the slain Punjab Chief Minister, Beant Singh, as Minister in 1996. After the six-month period had lapsed, Mr. Singh was sworn in as Minister for a second time despite the fact that he was not elected to the Punjab Assembly.

The Court has made it crystal clear that Article 164 (4) of the Constitution, which states that a Minister who is non-member of a legislature shall cease to be Minister at the expiration of six months, is only in the nature of an ``exception'' and used to ``meet very extraordinary situations''. The standard rule - namely, the one that underlines the very essence of parliamentary democracy and the Constitutional provisions - is that only members of legislatures may become Ministers. Simply put, the electorate must have a say in who governs us. The Court's ruling will make it impossible for unelected Ministers to use the wholly unacceptable ruse of resigning for a brief period (even a day) towards the end of the six-month ``grace'' period and then be sworn in once again under the Constitutional cover of Article 164 (4). By strictly construing the provisions of the Article, the Court has tacitly underlined the supremacy of the electorate and curbed, to use its own words, ``the seductive temptations of clinging on to office regardless of the Constitutional restraint''.

In its ruling, the Bench has expressly declined to pronounce its view on the question whether non-legislators may be appointed Ministers if they are disqualified, either because of a Constitutional or statutory provision, from contesting an election. This is indeed the very question which arose when the Tamil Nadu Chief Minister, Ms. Jayalalithaa, was sworn in recently. Those who held that her swearing-in was invalid had argued, among other things, that the provisions of Article 164 (4) were never intended to cover those who have been disqualified from contesting an election. This, and related matters to her ascension, are the focus of a clutch of writ petitions challenging the validity of her appointment that are currently before the Supreme Court. So much so, the Court's recent ruling has no direct bearing on Ms. Jayalalithaa's continuation in office. However, it does rule out the option of her stepping down briefly and then staking her claim again to the chief ministerial chair. To be fair, although such a suggestion had been floated, there was never any indication that the Tamil Nadu Chief Minister was contemplating such a shabby manoeuvre. It seems very likely now that her continuance as Chief Minister will depend on the fate of her appeal in the Madras High Court against her conviction in the TANSI cases and, if the verdict goes in her favour, of getting subsequently elected. This is how it should be. For, in keeping with the general principle laid down by the recent Supreme Court judgment, those who govern us must - in the final analysis - be elected by us.

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