B. R. Kapoor v. State Of Tamil Nadu
- Jayalalithaa, was convicted in two criminal cases by the trial court. On appeal, High Court suspended her sentences but her application for stay of judgment was rejected. She then contested elections and her nomination was rejected due to criminal convictions. Her party came into the majority and she became the Chief Minister. This was challenged in appeal.
- Har Sharan Verma v. Tribhuvan Narain Singh,Chief Minister, U.P. – Person was not a member of either house of legislature of the state and was made Chief minister. Court held that Article 164(1) does not provide any qualification for person to be selected as Chief Minister. Accordingly, court held that it sees no reason as to why 164(4) be restricted to only cases where a Minister loses for some reaso11 his seat in the Legislature of the State.
- Har Sharan Verma Union of India – Court considered the question in the context of membership of Parliament and Article 75(5), which is similar in terms to Article 164( 4). The Court said that a person who was not a member of either House of Parliament could be a Minister for not more than· six months; though lie would not have any right to vote, he would be entitled, by virtue of Article 88, to participate in the proceedings of Parliament.
- P. Anand v. H.D. Deve Gowda – parity of reasoning if a person who is not a member of the State Legislature can be appointed a Chief Minister of a State under Article 164(4) for six months, a person who is not a member of either House of Parliament can be appointed Prime Minister for the same duration.
- R. Chaudhuri v. State of Punjab – Using Article 164(4) same person was being made minister again and again during the same term without fighting the election which was not allowed by the court.
- To answer the question before us, three sub-Articles of Article 164 need, in our view, to be read together, namely, sub-Articles (1),(2) and (4)…Necessarily implicit in sub-Article (4) read with sub- Articles (1) and (2) is the requirement that a Minister who is not a member of the legislature must seek election to the legislature and, in the event of his failing to secure a seat in the legislature within six months, he must cease to be a Minister. The requirement of sub- Article (4) being such, it follows as the night the day that a person who is appointed a Minister though he is not a member of the legislature shall be one who can stand for election to the legislature and satisfy the requirement of sub-Article (4). In other words, he must be one who satisfies the qualifications for membership of the legislature contained in the Constitution (Article 173) and is not disqualified from seeking that membership by reason of any of the provisions therein (Article 191) on the date of his appointment
Re Gujarat Assembly Election Matter
- The dissolved Legislative Assembly of the State of Gujarat was constituted in March 1998 and its five-year term was to expire on 18.3.2003. On 19.7.2002 on the advice of the Chief Minister, the Governor of Gujarat dissolved the Legislative Assembly. The last sitting of the dissolved Legislative Assembly was held on 3rd April 2002. Immediately after dissolution of the Assembly, the Election Commission of India took steps for holding fresh elections for constituting the new Legislative Assembly. However, the Election Commission by its order dated 16th August, 2002 while acknowledging that Article 174(1) is mandatory and applicable to an Assembly which is dissolved and further that the elections for constituting new Legislative Assembly must be held within six months of the last session of the dissolved Assembly, was of the view that it was not in a position to a conduct elections before 3rd of October, 2002 which was the last date of expiry of six months from last sitting of the dissolved Legislative Assembly. It is in this context the President of India in exercise of powers conferred upon him by virtue of Clause (1) of Article 143 of the Constitution of India referred three questions for the opinion of the Supreme Court by this order dated 19th August, 2002 which run as under…
- the first question that arises for consideration is whether Article 174(1) is applicable to a dissolved Assembly?… A plain reading of Article 174 shows that it stipulates that six months shall not intervene between the last sitting in one session and the date appointed for its first sitting in the next session. It does not provide for any period of limitation for holding fresh election in the event a Legislative Assembly is prematurely dissolved. It is true that after commencement of the Constitution, the practice has been that whenever either Parliament or Legislative Assembly were prematurely dissolved, the election for constituting fresh Assembly or Parliament, as the case may be, were held within six months from the date of the last sitting of the dissolved Parliament or Assembly…Article 174 deals with a live legislature. The purpose and object of the said provision is to ensure that an existing legislature meets at least every six months, as it is only an existing legislature that can be prorogued or dissolved.
- Holding:-
- Article 174(1) of the Constitution relates to an existing, live and functional Legislative Assembly and not to a dissolved Assembly.
- The provision in Article 174(1) that six months shall not intervene between its last sitting in one session and the date appointed for its sitting in the next session is mandatory and relates to the frequencies of the sessions of a live and existing Legislative Assembly and does not provide for any period of limitation for holding fresh elections for constituting Legislative Assembly on premature dissolution of the Assembly.
- The expressions “the House”, “either House” is synonymous with Legislative Assembly or Legislative Council and they do not refer to different bodies other than the Legislative Assembly or the Legislative Council, as the case may be.
- Neither under the Constitution nor under the Representation of the People Act, any period of limitation has been prescribed for holding election for constituting Legislative Assembly after premature dissolution of the existing one. However, in view of the scheme of the Constitution and the Representation of the People Act, the elections should be held within six months for constituting Legislative Assembly from the date of dissolution of the Legislative Assembly.
- Under the Constitution, the power to frame the calendar or schedule for elections for constituting Legislative Assembly is within the exclusive domain of the Election Commission and such a power is not subject to any law either made by Parliament or State Legislature.
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