1987 JTR(SC) 541
1987 AIR(SC) 1969 ; 1987 2 CurCC(SC) 400 ; 1987 3 JT 62 ; 1987 4 JT 62 ; 1987 2 Scale 25 ; 1987 Supp SCC 310 ; 1987 2 UJ 308 ; 1987 KHC 764
SUPREME COURT OF INDIA
R.S. PATHAK, CJI., RANGANATH MISRA, J.
Special Leave Petn. (Civil) No. 1742 of 1987, D/- 14-7-1987.
Harsharan Verma, Petitioner
Versus
Union of India and another, Respondents.
Act Referred :CONSTITUTION OF INDIA : Art.75(5), Art.88, Art.136
(A) The constitutional provisions referred to, namely Article 75(5), Article 88, and Article 136, govern the eligibility, powers, and jurisdictional reach of Ministers in the context of this special leave petition. Article 75(5) explicitly stipulates that a Minister who for six consecutive months is not a Member of either House of Parliament shall, at the expiration of that period, cease to be a Minister, thereby setting a clear qualification and limitation on the duration of non-membership. Article 88 complements this by defining the privileges and scope of participation for Ministers in parliamentary proceedings, allowing them to speak and take part without conferring voting rights, thus underscoring their auxiliary role in the legislative process. Article 136, read in conjunction with Article 226, delineates the jurisdictional threshold of this Court, highlighting the conditions under which special leave may be entertained and the necessity of a live issue for adjudication. Together, these provisions frame the challenge to the appointment of a Minister who was not a Member of Parliament at the time of appointment, focusing on the interplay between eligibility, tenure, and the justiciability of such appointments.
(B) The core legal principles emerging from the judgment are that a Minister who is not a Member of Parliament may serve for up to six months without violating the Constitution, that such an appointment does not undermine democratic principles or the doctrine of collective responsibility, that the rejection of a proposed Constituent Assembly amendment affirms the permissibility of non-member Ministers, and that courts will not examine the merits of such constitutional questions in the absence of a live issue or after the cessation of the impugned administrative action.
Facts of the case:
The petitioner filed an application for special leave challenging the appointment of Shri Sita Ram Kesari as a Minister of State when he was not a Member of either House of Parliament, an issue that had remained unresolved for 25 years. The petition was initially rejected by the Lucknow Bench of the Allahabad High Court under Article 226, and the present application was filed with a delay of 11 days without a request for condonation. By the time of the proceedings, Shri Sita Ram Kesari had ceased to hold the ministerial office, rendering the issue non-live.
Findings of Court:
The Court held that the constitutional mechanism does not prohibit the appointment of a non-member as a Minister for up to six months, that the petitioner had not demonstrated any merit in raising the same issue over a prolonged period, that the High Courts reasoned order was correct, and that the application for special leave was not maintainable in the absence of a live issue.
Issues:
Whether a person who is not a Member of either House of Parliament can be appointed as a Minister, whether such appointment for up to six months is constitutionally valid, whether the courts should examine the merits of such constitutional questions after the cessation of the impugned action, and whether an application for special leave filed after an unreasonable delay without condonation should be dismissed.
Ratio Decidendi:
The Constitution permits the appointment of a non-member as a Minister for a period of up to six months, as provided under Article 75(5), and such an appointment does not violate democratic principles or the framework of parliamentary government, as evidenced by the Constituent Assembly debates rejecting the proposed amendment to require membership at the time of appointment; consequently, the petitioners contention lacks merit, and the court will not examine the merits where the issue is no longer live.
Result:
The application for special leave is dismissed.
(A) The constitutional provisions referred to, namely Article 75(5), Article 88, and Article 136, govern the eligibility, powers, and jurisdictional reach of Ministers in the context of this special leave petition. Article 75(5) explicitly stipulates that a Minister who for six consecutive months is not a Member of either House of Parliament shall, at the expiration of that period, cease to be a Minister, thereby setting a clear qualification and limitation on the duration of non-membership. Article 88 complements this by defining the privileges and scope of participation for Ministers in parliamentary proceedings, allowing them to speak and take part without conferring voting rights, thus underscoring their auxiliary role in the legislative process. Article 136, read in conjunction with Article 226, delineates the jurisdictional threshold of this Court, highlighting the conditions under which special leave may be entertained and the necessity of a live issue for adjudication. Together, these provisions frame the challenge to the appointment of a Minister who was not a Member of Parliament at the time of appointment, focusing on the interplay between eligibility, tenure, and the justiciability of such appointments.
(B) The core legal principles emerging from the judgment are that a Minister who is not a Member of Parliament may serve for up to six months without violating the Constitution, that such an appointment does not undermine democratic principles or the doctrine of collective responsibility, that the rejection of a proposed Constituent Assembly amendment affirms the permissibility of non-member Ministers, and that courts will not examine the merits of such constitutional questions in the absence of a live issue or after the cessation of the impugned administrative action.
Facts of the case:
The petitioner filed an application for special leave challenging the appointment of Shri Sita Ram Kesari as a Minister of State when he was not a Member of either House of Parliament, an issue that had remained unresolved for 25 years. The petition was initially rejected by the Lucknow Bench of the Allahabad High Court under Article 226, and the present application was filed with a delay of 11 days without a request for condonation. By the time of the proceedings, Shri Sita Ram Kesari had ceased to hold the ministerial office, rendering the issue non-live.
Findings of Court:
The Court held that the constitutional mechanism does not prohibit the appointment of a non-member as a Minister for up to six months, that the petitioner had not demonstrated any merit in raising the same issue over a prolonged period, that the High Courts reasoned order was correct, and that the application for special leave was not maintainable in the absence of a live issue.
Issues:
Whether a person who is not a Member of either House of Parliament can be appointed as a Minister, whether such appointment for up to six months is constitutionally valid, whether the courts should examine the merits of such constitutional questions after the cessation of the impugned action, and whether an application for special leave filed after an unreasonable delay without condonation should be dismissed.
Ratio Decidendi:
The Constitution permits the appointment of a non-member as a Minister for a period of up to six months, as provided under Article 75(5), and such an appointment does not violate democratic principles or the framework of parliamentary government, as evidenced by the Constituent Assembly debates rejecting the proposed amendment to require membership at the time of appointment; consequently, the petitioners contention lacks merit, and the court will not examine the merits where the issue is no longer live.
Result:
The application for special leave is dismissed.
ORDER : - This application for special leave is directed against the order of the Lucknow Bench of the Allahabad High Court dated 17th October, 1986, rejecting the petitioners application in limine by a reasoned order under Art. 226 of the Constitution challenging the appointment of Shri Sita Ram Kesari as a Minister of State of the Central Cabinet though he was not a Member of either House of Parliament then. There is a delay of 11 days in the making of this application and the petitioner who has appeared in person has not applied for condonation of delay. The petitioner appeared in person to support the application and relied upon the written note filed by him which is already a part of the record. He also filed a printed book-let where reference to the point in issue has been indicated.
2. Shri Sita Ram Kesari has admittedly ceased to be a Minister and the issue is no more a live one. It is a well accepted practice that Courts do not undertake interpretation of the Constitution unless there be a live issue before them. The petitioner has indicated in his written note and reiterated the same during the oral submissions that for the last 25 years he has been raking up the same issue and no Court has ever examined the tenability of his contention on merits. Since there is a question of limitation condonation of which has to be considered after giving the petitioner an opportunity to make an application therefor, we wanted to be satisfied if there was on merit a point deserving consideration of this Court. We have, therefore, examined the tenability of the contention canvassed by the petitioner. As stated earlier, the High Court has by a reasoned order dismissed the writ petition in limine. Having heard the petitioner, we are inclined to agree that the High Court came to the correct conclusion. Two Articles of the Constitution and a brief reference to the relevant debate in the Constituent Assembly clearly indicate that the submission advanced by the petitioner has no merit. Article 75 makes provision for Central Ministers. Clause (5) thereof provides. :-
"A Minister who for any period of six consecutive months is not a Member of either House of Parliament shall at the expiration of that period cease to be a Minister."
Article 88 provides :-
"Every Minister and the Attorney General of India shall have the right to speak in, and otherwise to take part in the proceedings of either House, any joint sitting of the Houses, and any committee of Parliament of which he may be named a member, but shall not by virtue of this article be entitled to vote."
The combined effect of these two Articles is that a person not being a member of either House of Parliament can be a Minister up to a period of six months. Though he would not have any right to vote, he would be entitled to participate in the proceedings thereof. The petitioner admits that in the thirty-seven years of constitutional regime in this country there have been several instances where a person has held the office as Minister either at the Centre or in the State (there are corresponding provisions for the State), not being a member of the appropriate Legislature at the time of appointment.
3. A brief reference to the proceedings of the Constituent Assembly would throw enough light on the question. A member of the Constituent Assembly proposed an amendment to the following effect :-
"No person should be appointed a Minister unless at the time of his appointment, be is elected member of the House."
(This exactly is the proposition of the petitioner). Mr. Ambedkar opposed the amendment by saying :-
"Now with regard to the first point, namely, that no person shall be entitled to be appointed a Minister unless he is at the time of his appointment an elected member of the House, I think it forgets to take into consideration certain important matters which cannot be overlooked. First is this and 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 and which, although it may be perfectly good, might have annoyed the constituency and he might have incurred the displeasure of that particular constituency. It is not a reason why a member so competent as that should not be permitted to be appointed a member of the Cabinet on the assumption that he shall be able to get himself elected from the same constituency or from another constituency. After all the privileges that he is permitted is a privilege that extends only to six months. It does not confer a right on that individual to sit in the House being ( not?) elected at all. My second submission is this that the fact that a nominated Minister is a member of the Cabinet does not either violate the principle of collective responsibility nor does it violate the principle of confidence because he is a member of the cabinet if he is proposed to accept the policy of the Cabinet stands part of the Cabinet and resigns with the Cabinet when he ceases to have the confidence of the House, his membership of the Cabinet does not in any way cause any inconvenience or breach of the fundamental principles on which parliamentary Government is based. Therefore, this qualification in my judgment is quite unnecessary."
The Constituent Assembly rejected the proposed amendment. The answer given in the debate of the Constituent Assembly meets the objection of the petitioner to the fullest extent. To appoint a non-member of the Parliament as a Minister does not militate against the constitutional mechanism, we agree with the High Court that such an appointment does neither militate against the democratic principles embodied in the Constitution. We endorse the view of the High Court and dismiss the application for special leave.
Application dismissed.