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Uddhav Thackeray has taken advantage of the constitutional scheme which enables a non-member to become a Minister for a period of six months. Article 164(4) of the Constitution facilitates such appointment in the interest of the governance with a qualification that the Minister should get elected to the legislature within six months of sworn in as a Minister.
Limiting the scope of the constitutional provision, the Supreme Court in SR Chaudhuri v. State of Punjab declared that the re-appointment of a non-member as a Minister during the term of same legislative assembly amounts to subversion of the constitutional guarantees.
In SP Anand, Indore v. HD Deve Gowda, the Court clarified that a non-member can very well be appointed as Prime Minister because parliamentary democracy demands collective responsibility of the ministers towards the legislature. Thus, the accountability of the executive towards the elected representatives would conform to the ideals of representative democracy.
While explaining the constitutional design of such appointment, Dr. BR Ambedkar aptly cautioned that it is a matter of privilege which extends only for a period of six months, and does not confer a right in favour of that individual without getting elected at all.
Notably, a non-member, including a Minister, is not allowed to vote in the proceedings of the House. It clearly manifests that there is a limitation on the entitlements of the individual who has been appointed as a Minister without becoming a member of the legislature.
The Role of Nominated Members
Article 171(5) provides for nomination to the Legislative Council by the Governor from amongst persons who have special knowledge or practical experience in respect of such matters as literature, science, art, cooperative movement and social service.
The ingenuity of the framers of the Constitution is reflected by the inclusion of a separate class of accomplished individuals being nominated to the legislature. The purpose underlying the same is to enrich legislative business with the special knowledge and practical experience of the nominated members.
Needless to say, the nomination would be justified only when such members have extraordinary achievement in the areas indicated in the Constitution. Though the nominated members are eligible to enjoy power, privileges and immunities as available to the elected members, they are not entitled to vote in the election of the President.
A nominated member has also been exempted from filing his assets and liabilities under Section 75A of the Representation of the Peoples Act, 1951, which requires the elected member to do so within 90 days of his making or subscribing oath/affirmation.
It clearly spells out that nominated members do not have the same status as that of elected members. Nominated members should not be allowed to take up all the assignments, including being part of the political executive, which the elected members are entitled to on account of the values of representative democracy.
The discussion among members of the Constituent Assembly during the debates held on August 19, 1949 could serve as a guidance to unveil the role of nominated members in the legislature.
While moving an amendment to Draft Article 150, HV Kamath advocated for the insertion of two categories - religion and philosophy. Brajeshwar Prasad suggested that every member of the legislative council should be a graduate. Purnima Banerji highlighted the need to widen the category of ‘social service’ to include those who are associated with the cause voluntarily, including women’s organisations.
Though the amendments moved by the members were negatived, the debates give an idea of the benefits nominated members were supposed to bring to the House based on their rich experience.
Highlighting their role, N Gopalswami Ayyangar said in the Constituent Assembly on 28 July 1947:
“… we also give an opportunity, perhaps, to seasoned people who may not be in the thickest of the political fray, but who might be willing to participate in the debate with an amount of learning and importance which we do not ordinarily associate with the House of the People.”
Jawaharlal Nehru, speaking about nominated members in the House of People in 1952, eulogized that "they do not represent political parties or anything, but they represent really the high watermark of literature or art or culture or whatever it may be.'
The categories eliminated from the list for nomination was based on the belief of adequate representation of such groups to the lower House on the basis of adult suffrage. The spheres enumerated are illustrative and not exhaustive.
The Delhi High Court in Ram Gopal Singh Sisodia v. Union of India reiterated the illustrative nature of the enlisted categories while upholding the legality of the nomination of cricket icon Sachin Tendulkar to the Rajya Sabha under the category of ‘art’.
Nominated members were expected to contribute a distinctive and valuable kind of wisdom to the parliamentary deliberations. Unless nominated members accept the allegiance of a political party within six months of assuming seat in the House, it is desirable to portray that they could take a broader and more balanced view of the issue under consideration, in contrast to the approach of the elected members.
J H Proctor was an American scholar who evaluated the role of nominated members for three decades after the commencement of the Constitution. In his seminal work titled ‘The Nominated Members of India’s Council of States: A Study of Role Definition', he aptly observed that,
“...the nominated members did make a contribution to the celebrations of the Council of States which was both unusual and useful, however. The complexities of certain problems were elucidated in erudite and objective fashion, and needs which were neglected by other backbenchers were brought to the attention of policy makers."
Nominated member as a Minister
Till date, no nominated members have been inducted into the Council of Ministers at the Centre. At the state level, it was done in Uttar Pradesh way back in 1961. In that case, Chandra Bhan Gupta had entered the House as a nominated member in the year 1960. On December 7, 1960, the Governor appointed Gupta as Chief Minister of Uttar Pradesh, when he was not the member of the Assembly. Gupta was nominated to the council within less than two months of time from his appointment as Chief Minister.
Har Sharan Verma filed a petition praying for the writ of quo warranto against Gupta on the grounds that a non-member should not be allowed to become a Minister and that nomination should not be a back-door route to enter the House for any person. In 1962, the Allahabad High Court did not agree with the first leg of the argument on account of the collective responsibility of the ministers towards the House. However, on the second issue, the Court had aptly acknowledged that,
“…the petitioner has made out a prima facie case that the nomination of the first respondent to the Legislative Council was for political reasons and not for any purpose intended by the makers of the Constitution.”
Further, the Court had highlighted the characteristics of the nomination by stating that,
“Clause (5) of Article 171 was apparently intended to make the membership of the legislature available in the public interest to such persons so that they may not contest elections. It was not enacted to enable a minister who has been defeated in an election to enter the legislature by the backdoor of nomination, or to enable the political party in office whose strength is derived from the verdict of the electorate, to increase its numerical strength in the legislature without submitting to this verdict.”
The Court, however, did not clarify the legal question whether being a nominated member constitutes a disqualification to become a minister or vice-versa.
The judgment has certainly unveiled the limitation attached to the role of the nominated members in the affairs of running the government. Perhaps, the manifestation in the constitutional scheme narrates the functional role of the nominated members.
The impending issue before the Governor of the Maharashtra should not be viewed from the mandate of Article 163(1), which suggests the binding nature of the recommendation of the Council of Ministers in a parliamentary democracy. The Supreme Court, in Shamsher Singh v. State of Punjab, explained the limitation of the Governor/President in the matter of advice tendered by the Council of Ministers.
But the case at hand is not of the relationship between the Governor and the Council of Ministers. It relates to a proprietary issue of the constitutional scheme which is bereft of a legal character, to be determined in the court of law.
As in case of the Speaker, the Constitution stipulates that a legislator should continue to play a non-partisan role and cannot become inducted as a Minster. Similarly, the argument that nominated members should not be allowed to be a member of the political executive stands on a finer understanding of the separation powers between the legislature and the executive.
Nominated members are expected to express viewpoints which would be sharply distinguished from the elected ones when the nominations are not based upon political affiliations. They need to bring out issues that otherwise fail to draw attention in the midst of partisan agendas.
The Governor has a responsibility to act constitutionally. In a situation devoid of interpretation, the Governor should apply the reasoning based on the constitutional text and conventions. Needless to say, the rationale of the decision of the Governor can always become a subject matter of judicial scrutiny.
The author is an Associate Professor at the Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology Kharagpur. Views are personal.