May not be morally correct but no Constitutional bar, Bombay HC dismisses pleas against appointment of 3 state ministers

In a relief to Maharashtra Government, the Bombay High Court has dismissed petitions challenging the appointments of Radhakrishna Vikhe-Patil, Jaydutt Kshirsagar and Avinash Mahatekar as ministers in the Maharashtra government..A Division Bench of Justices SC Dharmadhikari and GS Patel passed an order to this effect on petitions filed by one, Surinder Mohan Arora and other activists through advocate Satish Talekar, challenging the appointments of the three ministers, since they were not members of either House of the State Legislature. Recently appointed Leader of Opposition in the state assembly and Congress Party leader, Vijay Wadettiwar had also filed a petition against Vikhe-Patil and Kshirsagar..The Court has ultimately dismissed these pleas, on the ground that the Constitution of India does not prohibit appointments of non-legislators as ministers even if they have resigned from their earlier party and joined other parties in power. The Court went on to note that after the Lok Sabha elections held this year, the Bharatiya Janata Party (BJP) got the majority votes, which might have inspired leaders from other political parties to join the party. In this backdrop, the Court observed that the ministers have been inducted merely for political gains and convenience. All the same, the Court remarked,.“We do not endorse this. What has been done may strictly not be morally correct and may have been a political plot but we cannot hold that the ministers defected and are disqualified.”.While Justice SC Dharmadhikari began dictating the order on Monday, the Court could not pass the same on the said day due to paucity of time. The Court, therefore, passed the order on Friday. On June 24, the court had issued notice to the three ministers and sought their response on the pleas.Vikhe-Patil, who was Leader of Opposition in the state assembly, had resigned from the Congress and as a Member of the Legislative Assembly. He was allotted the Housing portfolio in the recent cabinet reshuffle that took place on June 16..Kshirsagar, who quit the Nationalist Congress Party (NCP) and joined the Shiv Sena, was given charge of the Employment Guarantee and Horticulture Ministry. Republican Party of India (A) leader Mahatekar also took an oath as a Minister of State for Social Justice and Special Assistance..It was Opposition Leader, Wadettiwar’s case that Vikhe-Patil and Kshirsagar, who were members of the House, cannot become ministers without getting elected. Moreover, he claimed that since assembly polls are due in the next few months, by-elections cannot be held now. His petition, however, noted that even this rule would not apply to Mahatekar’s case, as he was not a member of either House of the State Legislature..The tenure of the state assembly expires on November 8 and the polls are likely to be held next month..When the petition was filed in June, this year, the elections were due in over three months. The petitioners had argued that by-elections cannot be held, as the assembly will be dissolved in less than one year. Thus, it was argued that the ministers ought to be disqualified by virtue of defection..The petitioners had argued that induction of the three leaders on ministerial posts was in violation of constitutional provisions. In this regard, the petitioners had cited Section 151 A of the Representation of the People Act, along with Article 164(4) of the Constitution of India to support their claims..Section 151 A of Representation of the People Act requires the Election Commission to fill the casual vacancies in a House of Parliament and state legislatures through by-elections within six months of the date of occurrence of the vacancy, provided that the remainder of the term of a member in relation to a vacancy is one year or more..Article 164(4) of the Constitution places a restriction on the continuation of such persons as ministers by laying down that “a minister, for any period of six consecutive months is not a member of legislature of state, shall be, at the expiration of that period cease to be a minister”..Vikhe-Patil, in response, had argued earlier that the petitioners had erroneously misinterpreted Constitutional provisions. It was his case that a non-member of either house can be validly appointed as minister for six months..Special counsel Vijay Thorat, representing the state government, had also opposed the claims made by petitioners, arguing,.“There is no such provision for disqualification in Article 164(4) before completing six consecutive months in the office. Constitutional provisions cannot be interpreted by way of inference. The respondent ministers can have genuine reason to go for by-elections.”