Supreme Court of India
HAR SHARAN VERMAversusSTATE OF U.P. & ANR.
- Citation
- 1985 INSC 2
- Decided
- 10 January 1985
- Disposal
- Dismissed
- Bench
- E S VENKATARAMIAH
Holding
A person who is not a member of the State Legislature may be appointed as a Minister, provided he ceases to be a Minister if he does not become a member within six consecutive months as per Article 164(4).
Summary
Har Sharan Verma filed a writ petition under Article 32 challenging the appointment of K.P. Tewari as a Minister of Uttar Pradesh, contending that the Constitution, as amended by the Sixteenth Amendment (Article 173(a)), required a minister to be a member of the State Legislature. The petitioner argued that the amendment introduced a pre‑election oath requirement and that Article 164(4) applied only to ministers who lost legislative membership after appointment. The Supreme Court examined the effect of the amendment, the constitutional provisions on ministerial appointment (Articles 163, 164, 177, 188) and the Constituent Assembly debates. It held that the amendment merely added an oath requirement for candidates and did not alter the rule that a non‑legislator may be appointed as a minister, subject to the six‑month rule in Article 164(4). Consequently, the petition was dismissed as having no merit.
Issues considered
- Whether the amendment of Article 173(a) by the Constitution (Sixteenth Amendment) Act, 1963 bars the appointment of a person who is not a member of the State Legislature as a Minister.
- Whether Article 164(4) applies only to ministers who cease to be legislators after appointment.
- Whether the Constituent Assembly debates impose a requirement of legislative membership at the time of ministerial appointment.
Legislation cited
- Constitution of Indias. Article 163, s. Article 164, s. Article 173(a), s. Article 177, s. Article 188, s. Third Schedule
- Constitution (Sixteenth Amendment) Act, 1963s. Amendment to Article 173(a)
Subjects
Ministerial appointmentState Legislature membershipArticle 164Article 173(a)Sixteenth AmendmentQuo warrantoConstitutional lawLegislative responsibility
Judgment
547
A
HAR SHARAN VERMA
v• B
• STATE OF U.P. & ANR.
January 10, 1985
(ES. VENKATARAMIAH AND D.P. MADON, JJ.]
(
c
Constitution of India, Article 164 and Art{cle 173(a) (as amended by
Constitution (Slxteenth) Amendment Act, 1963)-Ejfect of amendded Article
173(a)-A person not a member of State Legislature-Whether can be
appointed as a Minister in a State even after amendment of Article 173(a).
Held: Yes.
Through this petition filed under Article 32 of the Constitution the peti- D
tioner prayed for the issue of a writ in the nature of quo worranto to the respon-
dent K.P. Tewari who had been appointed in November, 1984 as a Minister of
the Government of Uttar Pradesh under Article 164(1) of the Constitution by
the Governor of the State of Uttar Pradesh even though Shri Tewari was not a
member of either House of the State Legislature. The petitioner contended (i) that
in the judgment of Har Sharan Verma v. Shri Tribhuvan Narain Singh, Chief
Minister of U.P, and Anr., (AIR 1971 S.C. 1331) where it had been held that E
the appointment of a person as Chief Minister could not be challenged t>n the
ground that he was not a member of the Legislature of a State at the time of
appointment, this Court had not considered the effect of the amendment of
Article 173 (a) of the Constitution by the Constitution (Sixteenth) Amendment
Act, 1963; (ii) that after the amendment of Article I 73 of the Constitution
by the Constitution (Sixteenth) An1endment Act, 1963 it was not open to the
F
Governor to appoint a person who was not a member of the Legislature of the
State as a Minister and that Article 164(4) of the Constitution would only be
applicable to a person who had been a Minister but who ceased to be a member
• of the Legislature for some reason such as the setting aside of his election in any
election petition; and (iii) that the debates of the Constituent Assembly suggested
that a person should be a member of the Legislature at the time of his being
chosen as a Minister. G
Dismissing the petition,
HELD : (I) By the Sixteenth Amendment clause (a) of Article 173 of the
Constitution is amended by the addition of a clause which requires a candidate
at an election to the Legislature to make and subscribe before some person H
authorised in that behalf by the Election Commission an oath or affirmation
548 SUPREME COURT REPORTS (1985] 2 S.C.R.
according to the form set out for the purpose in the Third Schedule to the Cons-
titution. Earlier it was only after a person was elected or nominated as a member
of the Legislature of a State that he was required by Article 188 of the Constitu-
tion to make and subscribe an oath or affirmation before taking his seat as such
member in the form mentioned in the Third Schedule to the Constitution. The
above requirement has to be co1nplied with by an elected or nominated member
of the State Legislature even after the Sixteenth Amendn1ent. [550H; 551A; E;H]
B
(2) The object of introducing the an1endment in clause (a) of Article 173 •
of the Constitution was to provide that not only before taking his seat shall a
member of the Legislature take the oath prescribed by the Third Sehedule as
required by Article 188 of the Constitution but that even before standing for
election, a candidate must take the same oath. This is to ensure that only a
••
c person having allegiance to India shall be eligible for membership of the Legis-
lature. [552C-D]
(3) Article 177, ensures the implemcntatation of the constitutional princi-
ple contained in clause (2) of Article 164 of the Constitution which provides that
the Councial of Ministers shall be collectively responsible to the Legislative
D Assembly of the State. A Minister in a State under our Constitution discharges
that responsibility by virtue of the provisions contained in Article 177 of the Cons-
titution which enables him to participate in the proceedings of the Legislative
Assembly even though he may not be its member with the right to vote. [553F; G]
(4) It does not appear that the debates of the Constituent Assembly
E suggest that a person shall be a member of the Legislature at the time of his.
being chosen as a Minister. An an1endment was proposed to that effect in the
Constituent Assembly to the draft Constitution but was not accepted.
[553H; 554A-Cl
(5) The fear expressed by the petitioner that a person who does not owe
his allegiance to the Constitution and is not wiiling to uphold the sovereignty and
integrity of India would have an apportunitY to become a Minister if he is not
F required to become a member of the Legislature after having made and subscribed
an oath or affirmation as prescribed by Article 173(a) of the Constitution is not
well founded because under clause (3) of Article 164 of the Constitution a Minister
for a State is required to take an oath of allegiance to the Constitution and to
undertake to uphold his office in the form prescribed in the Third Schedule.
l554C-E]
(6) No material change has been brought about by reason of the amend- •
ment of Article 173(a) of the Constitution in the legal position that a person who
G is not a member of the State Legislature may be appointed as a Mi.nister subject,
Of course, to clause (4) of Article 164 of the Constitution according to
which a Minister who for any period of six consecutive months.is not a
member of the Legislature of the State sha11 at the expiration of that period
cease to be a Minister. [554H ; 555A]
(7) By enacting Article 164(4) of the Constitution th<) makecs>ofthe
Constitution .provided for a situation where a Minister may lose 'a sea~:ill'4~
·-
HA1!. SHARAN v. U.P. STATE (Venkataramiah, J.) 549
Legislature after appointment-as the result of an election petition for example- A
or ffiay not be a member when he is appointed. ['i55B-C]
Har Sharan Verrna v. .Shri Tribhuvan Narain Singh, Chief Minister
J>fU.P. and Anr,, A.LR. 1971 S.C. 1331, Constituent Assernb/y Debates da:ed
June 1, 1949, Vol. VIII at p. 521 and Har Sharan Vernia v. Chandra Bhan Gupta
& Ors., A.I.R. 1962 Allahabad 301, referred to.
B
ORIGINAL JURISDICTION : Writ Petition (Civil) No. 17135 of
1984.
(Under Article 32 of the Constitution of India)
Har Sharan Verma : Petitioner in person.
c
The Judgment of the Court was delivered by
,.... VENKATRAMIAH, J. The petitioner has filed this petition under
Article 32 of the Constitution praying for the issue of a writ in the
nature of quo warranto to the respondent K.P. Tewari who has been
appointed in November, 1964 as a Minister of the Government of
Uttar Pradesh under Article 164 (I) of the Constitution by the D
Governor of the State of Uttar Pradesh even though he (K.P.
Tewari) is not a member of either House of the State Legislature.
The petitioner who claims to be a votary of pristine democracy
and constitutionalism and a crusader against any person who has not E
been elected to the State Legislature assuming the office of a Minister
has argued this case in person with unabated enthusiasm. It is stated
that this is the ninth in the series of cases filed by him over a period
of twenty-five years in his attempt to prevent erosion of the Executive
responsibility to the Legislature.
F
In Har Sharan Verma v. Shri Tribhuvan Narain Singh, Chief
Minister of U.P. & Anr.(1 ) which had been filed by the petitioner
himself, a Constitution Bench of this Court has held that the appoint-
ment of a person as Chief Minister cannot be challenged on the
gronnd that "be was not a member of the Legislature of a·State at the
G
..,. time of •ppointment. The grievance of the petitfoner against that
J'!;qg;µept is that this Court had not considered the effect of the
a·me11dment of Article 173 (a) of the Constitution by the Constitution
(Sixteenth) Amendment Act, 1963.
(1) A:I.R. 1971S.Ct1331.
sso SUPREME COURT REPORTS (1985] 2 S.C.R.
A " The petitioner contends more pointedly in this case that after
the amendment of Article 173 of the Constitution by the Constitution
(Sixteenth) Amendment Act, 1963, it is not open to the Governor to
appoint a person who is not a member of the Legislature of the
State as a Minister and that Article 164 (4) of the Constitution would
only be applicable to a person who has been a Minister but who
B ceases to be a member of the Legislature for some reason such as the
setting aside of his election in any election petition.
Article 173 before it was amended by the Constitution
(Sixteenth) Amendment Act, 1963 read as :
c
"173. A person shall not be qualified to be chosen to
fill a seat in the Legislature of a State unless he-
(a) is a citizen of India;
(b) is, in the case of a seat in the Legislative Assembly, not
D less than twenty-five years of age and, in the case of a
seat in the Legislative Council, not less than thirty years"
of age; and
(c) possesses such other qualifications as may be prescribed
in that behalf by or under any law made by Parlia·
E ment."
After its amendment clause (a) of Article 173 of the Constitu- J
tion now reads thus :
"173. A person shall not be qualified to be chosen to
F fill a seat in the Legislature of a State unless he-
(a) is a citizen of India, and makes and subscribes before
some person authorised in that behalf by the Election
Commission an oath or affirmation according" to the
form set out for the purpose in the Third
Schedule; ........................ "
G
By the Sixteenth Amendment clause (a) of Article 173 of the
Constitution is amended by the addition of a clause which requires a
candidate at an election to the Legislature to make and subscribe
before some person authorised in that behalf [by the Election Com·
HAR SHARAN v. U.P. STATE (Venkataramiah, J.) ·551
mission an oath or affirmation according to the form set out for the
A
purpose in the Third Schedule to the Constitution. The said form of
oath or affirmation which a candidate at an election to the Legislature
of a State should make and subscribe (which was also introduced by
the Sixteenth Amendment in the Third Schedule to the Constitution1
reads:
,. ' "Form of oath or affirmation to be made by a candidate
B
for election to the Legislature of a State :-
"I, A.B., having been nominated as a candidate to fill
a seat in the Legislative Assembly (or Legisative Council),
ffi. of God that 1 w1.11 b ear t rue 1a1
d o swear in the name c "th and c
so1emn1ya rm
allegianece to the Constitution of India as by law established
and that I will uphold the sovereignty and integrity of
India."
D
Earlier it was only after a person was elected or nominated as
a member of the Legislature of a State that he was required by
Article 188 of the Constitution to make and subscribe an oath or
+--1111 affirmation before taking his seat as such member in the following
form mentioned in the Third Schedule to the Constitution :
E
"Form of oath or affirmation to be made by a member
l of the Legislature of a State :-
"I, A.B., having been elected (or nominated) a member
-, of the Legislative Assembly (or Lagislative Council),
F
swear in the name of God .
do solemnly affirm____ that I will bear true faith and
allegiance to the Constitution of India as by law established
and that I will faithfully discharge the duty upon which I
am about to enter."
G
The above requirement has to be complied with by an elected
or nominated member of the State Legislature even after the Sixteenth
Amendment. The form of oath or affirmation to be made by a
member of the Legislature under Article 188 of the Constitution now
reads thus: H
552 SUPREME COURT REPORTS [1985] 2 S.C.R.
"Form of oath or affirmation to be made by a member
of the Legi;lature of a State :-
"I, A.B., having been elected (or nomimated) a member
of the Legislative Assembly (or Legislative Council),
d swear in the name of God h · "ll b fi · h
o solemnly affirm t at 1 w1 ear true a1t
•
and allegiance to the Constitution of India as by law esta-
blished and that I will uphold the sovereignty and integrity
of India and that I will faithfully discharge the duty upon
which I am about to enter."
The object of introducing the amendment in clause (a) of Arti-
c cle 173 of the Constitution was to provide that not only before
taking his seat shall a member of the Legislature take the oath pres-
cribed by the Third Schedule as required by Article 188 of the Cons-
titution but that even before standing for election, a candidate must
take the same oath. This is to ensure that only a person having
allegiance to India shall be eligible for membership of the Legislature.
Article 163 {I) and Article 164 of the Constitution which
provide for the appointment of the Chief Minister and other Minis-
ters in a State read thus :
"163. (I) There shall be a CouncH of Ministers with
the Chief Minister at the head to aid and advise the
Governor in the exercise of this functions, except in so far
as he is by or under this Constitution required to exercise
his functions or any of them in his discretion .................... .
"164. (1) The Chief Minister shall be appointed by the
F . Governnor and the other Ministers shall be appointed by
the Governor on the advice of the Chief Minister, and the
Ministers shall hold office dur,ing the pleasure of the
Governor:
Provided that in the States of Bihar, Madhya Pradesh
G and Orissa, there shall be a Minister in charge of tribal wel-
fare who may in addition be in charge of the welfare of the
Scheduled Castes and backward classes or any other work.
(2) The Council of Ministers- shall be collectively
responsible to the Legislative Assembly of the State." ·
. HAR SHARAN v. U.P. STATE (Venkataramiah, J.) 553
(3) Before a Minister enters upon his office, the Governor A
shall administer to him the oaths of office and of
secracy according to the for·ns set out for the purpose
iu the Third Schedule.
(4) A Minister who for any period of six consecutive B
months is not a member of the Legislature of the State
shall at the expiration of that period cease to be a
Minister .
• (5) The salaries and allowances of Ministers shall be such
as the Legislature of the State may from time to time by
c
Jaw determine and, until the Legislature of the State so
determines, shall be as specified in the Second
Schedule."
Clause (4) of Article 164 of the Constitution says that a Minis- D
ter (which includes a Chief Minister also) who for any period of six
consecutive months is not a member of the Legislature of a State
shall at the expiration of that period cease to be a Minister. By virtue
of Article 177 of the Constitution a Minister has a right to speak in,
and 'otherwise to take part in the proceedings of, the Legislative Assem-
bly of the State on in the case of a State having a Legislative Council,
both Houses, and to speak in, and otherwise to take part in tbe
proceedings of, any Committee of the Legislature of which he may
be named a member, but would not, by virtue of that Article, be
l entitled to vote. Article 177, therefore, ensures the implementation
of the constitutional principle contained in clause (2) of Article 164
the Constitution which provides that the Council of Ministers shall F
be cciHectively responsible to the Legislative Assembly of the State.
Ministerial responsibility to the Legislative Assembly is the means of
assuring that the Government is in line with popular opinion, "It is
also nec.essary to emphasise" says Sir Ivor Jennings in his book entit-
led 'The Btitis!J Constitution' "that ministerial responsibility means
only that a· politician must be able to answer in the House of Com-
mons for every act of administration." A Minister in a State under G
our Constitution discharges that responsibility by virtue of the pro-
visions contained in Article 177 of the Constitution which enables
him to participate in the proceedings of' the · Legislative Assembly
even though he may not be its member with the right to vote. The
petitioner, however, contends that the debates of the Constituent
Assembly snggest that a person shall be a member of the Legislature
554 SUPREME COURT REPORTS (1985] 2 s.c.R.
A at the time of his being chosen as a Minister. Tt does not appear to
be so. In fact, as was pointed out in Har Sharan Verma v. Shri Tri-
bhuvan Narain Singh, Chief Minister of U.P, and Anr. (supra) an
amendment was proposed in the Constituent Assembly to the draft
Constitution as follows :
B
"A Minister shall, at the time of being chosen as such,
be a member of the Legislative Assembly or the Legislative
Council of the States, as the case may be."
That amendment was not accepted. (See Constituent Assembly
c Debates dated June I, 1949, Vol. VIII at p. 521).
The fear expressed by the petitioner that a person who does not
)
owe his allegiance to the Constitution and is not willing to uphold
the sovereignty and integrity of India would have an :opportunity to
become a Minister if he is not required to become a member of the
D Legislature after having made and subscribed an oath or affirmation
as prescribed by Article 173 (a) of the Constititution is not well
founded because under clause (3) of Article 164 of the Constitution
a Minister for a State is required to take an oath of alleginace to the
Constitution and fo undertake to uphold the sovereignty and integrity
of India before entering upon his office in the form prescribed in the
E
Third Schedule to the Constitution which reads thus :
"Form of oath of office for a Minister for a State :
_,
"I A.B. do swear in the name of God that 1 will bear
' ' solemnly affirm
F
true faith and allegiance to the Constitution of India as by
law established, that I will uphold the sovereignty and inte-
grity of India, that I will faithfully and conscientiously
discharge my duties as a Minister for the State of......... and
that I will do right to all manner ;of people in accordance
with the Constitution and the law without fear or favour,
G affection or illwill."
It is thus seen tbat there is no material change brought about ...
by reason of the amendment of Article 173 (a) of the Constitution
in the legal position that a person who is not a member of the State
Legislature may be appointed as a Minister subject, of course, to
H clause (4) of Article 164 of the Constitution which says that a Minis-
HAR SHARAN v. U.P. STATE (Venkataramiah, J.) 555
ter who for any period of six consecutive months is not a member of A
the Legislature of the State shall at the expiration of that period
cease to be a Minister.
The decision of the Allahabad High Court in Har Sharan.
Varma v. Chandra Bhan Gupta and Ors.(1) which was again a case filed
by the petitioner, on which the petititiorer relies also lays down that B
by enacting Article 164 (4) of the Constitution the makers of the
Constitution provided for a situation where a Minister may lose a
seat in the Legislature after appointment-as the result of an election
petition for example-or may not be a member when he is appointed .
•
We do not, therefore, find any merit in the petition. The
petition is accordingly dismissed.
c
A.P.J. Petition dismissed.
L
•
(I) A I.R. 1962 Allahabad 301.
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