Tryst with the Constitution: The 6-month exception for legislators

The Supreme Court is currently hearing an interesting case concerning the appointment of a non-member of legislative assembly as a Cabinet Minister.

In Bihar, Deepak Prakash was appointed as Panchayati Raj Minister in November 2025 in the Nitish Kumar-led government. At the time, Prakash was not a member of either the Legislative Assembly or the Legislative Council. Subsequently, upon Nitish Kumar’s resignation in April, the Council of Ministers, including Prakash, resigned. However, Prakash was later re-appointed as a Minister in the new government led by Samrat Chaudhary.

His appointment was challenged before the Supreme Court earlier this year on the ground that it violates Article 164(4) of the Constitution, which provides that a person who is not a member of the legislature must become a member within 6 months of being appointed as a minister. I shall not comment on the individual case; instead, I shall discuss the constitutional provision involved and the broader questions it raises.

The Constitution generally proceeds on the assumption that ministers will be drawn from the legislature. Article 164 reflects this scheme by laying down the framework governing the Council of Ministers in the States, including their appointment, tenure, the numerical cap on their strength and other incidental matters. However, Clause (4) carves out an important exception and permits a person who is not a member of the legislature to be appointed as a minister, provided that they become a member of either House within 6 months. Failing this, they automatically cease to hold office.

This position is rooted in the Westminster model of parliamentary democracy. The model requires that executive power should ordinarily be exercised by those who have secured a democratic mandate and remain accountable to the legislature. At the same time, it also recognises that in limited circumstances, an individual may be appointed to the executive before entering the legislature. However, the expectation is that such a person must secure the confidence of the electorate or, where applicable, become a member within a reasonable period.

During the deliberations in the Constituent Assembly, an amendment was moved by Mohd Tahir to remove this exception and require that only a member of the House could be appointed as a minister. This amendment was opposed by Dr Ambedkar, who argued that there may be situations where a person is competent to serve as a minister but is defeated in an election for reasons unrelated to their merit. The Constitution permits such appointments, but only as an exception. Ambedkar explained:

“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...It is not a reason why a member so competent as that should not be permitted to be appointed a member of the Cabinet...After all, the privilege that is permitted is a privilege that extends only for six months.”

This position has been upheld by the courts repeatedly while adjudicating petitions challenging the appointment of a non-member as a Cabinet Minister, including the Prime Minister in one case. However, the question over the precise meaning of ‘6 months’ has come up before the Court only once before - specifically whether 6 months are to operate upon the first appointment, or each time the person is appointed.

In SR Chaudhari v. State of Punjab (2001), the Court dealt with similar facts. Tej Parkash was appointed as a minister in the State Cabinet but failed to get elected within the 6-month period and resigned thereafter. Subsequently, during the term of the same Legislative Assembly, a new Chief Minister was sworn in and Singh was once again appointed as a minister, despite not being an elected member even then. His appointment was challenged before the Supreme Court on the ground that it violated Article 164(4).

The Court found the subsequent appointment unconstitutional on the ground that he had failed to get himself elected within a period of “six consecutive months” from his first appointment. It held that the 6-month period is “a one-time slot” during the term of the concerned legislative assembly and is exhausted the moment an individual fails to get elected within 6 months of their initial appointment. In other words, the 6-month period runs continuously and not intermittently. The Court further held that the 6-month period is a “privilege” attached to the individual and not to the Chief Minister. Consequently, it is not permissible for successive Chief Ministers to appoint the same person as a minister without that person first becoming a member of the legislature during the term of the assembly.

The Court justified this interpretation on the principles of representative and responsible government, observing that permitting such a practice would be “derogatory to the constitutional scheme, improper, undemocratic and invalid.”

In SR Chaudhari, the Court held that the reappointment of Tej Parkash Singh on November 23, 1996 during the life of the same Legislative Assembly was unconstitutional. However, the judgment itself was delivered only in 2001, raising an important question: what is the validity of the acts performed by a minister whose appointment is subsequently declared unconstitutional?

To address such situations, the Court has developed the de facto doctrine, which provides that acts performed by a public authority whose appointment is subsequently found to be invalid are not rendered void solely on that account. The doctrine prevents the legality of every action taken by such an authority from being thrown into doubt and protects them in the interest of continuity and orderly administration. In Pushpadevi M Jatia v. ML Wadhawan (1987), the Supreme Court observed that “where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts is concerned.”

In the political context, the Court expressly invoked this doctrine in BR Kapur v. State of Tamil Nadu (2001), where the appointment of Chief Minister Jayalalithaa was declared unconstitutional. While setting aside her appointment, the Court clarified that actions performed by the respondent as Chief Minister and her government would not be affected solely by reason of the order passed by the Court.

Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy.

Views are personal.