Nitish Kumar must forthwith step down as Chief Minster

Mr. Nitish Kumar has resigned from his membership of the Bihar Legislative Council upon his election to the Rajya Sabha but has not yet relinquished his post of Chief Minister. Some ministers in the Bihar state government contend that he can continue as Chief Minister for a period of six months, pursuant to Article 164(4) of the Constitution. The article says “A Minister who for any period of six consecutive months is not a member of the legislature of the state shall at the expiration of that period cease to be a minister.  

This assertion is incorrect.

In order to understand it’s incorrectness, it is necessary to have a look at the deliberations of the Constituent Assembly to fathom the objective of the framers of the Constitution behind enshrining this provision as well as the interpretation accorded to this provision by the Supreme Court. 

In Har Sharan Verma vs. Tribhuvan Narain Singh, Chief Minister of Uttar Pradesh (1971), the Supreme Court has held that the interpretation of Article 164(4) must be made in the context of Article 163 (which deals with the Council of Ministers to aid and advise the Governor) and Article 164 (which deals with other provisions relating to Ministers). Taking into account the other provisions contained in Articles 163 and 164, there is no justification whatsoever to narrow down the meaning of the ‘express words’ in Article 164(4), nor to restrict its application solely to cases where a Minister’s seat in the State Legislature ceases to exist for some reason. This interpretation is further corroborated by the proceedings of the Constituent Assembly, as well as by the prevailing constitutional practices in England, Australia, and South Africa. In essence, the Court while interpreting the aforementioned articles held that an individual may continue to hold the office of a Minister for a period of up to six months, even if he is not a member of the Legislature.

In Har Sharan Verma vs. State of Uttar Pradesh and Others (1985), the Supreme Court held that a person who is not a member of the State Legislature may also be appointed as a Minister; however, such appointment is subject to Article 164(4).

In its B.R. Kapur vs. State of Tamil Nadu (2001), the Constitution Bench of the Supreme Court cited the debates of the Constituent Assembly. Assembly member and MP, Mohammed Tahir, had proposed an amendment to Article 144(3) of the draft constitution (which corresponds to Article 164(4) of the current constitution)  suggesting that whenever a member is selected to serve as a Minister, it should be mandatory for that individual to be a member of the legislature of the state. He argued that appointing an individual who has not been elected by the people of the country as a Minister is fundamentally inconsistent with the core principles of democracy. However, Dr. Ambedkar rejected this amendment. He stated that the tenure of a Minister must be contingent upon the conditions of administrative integrity and the confidence of the House. It is conceivable that an individual, despite being competent in all other respects to hold ministerial office, may have suffered defeat in an election for some reason, perhaps due to public displeasure in a specific constituency or because he incurred the wrath of the electorate. Such an individual could potentially be elected again from the same or a different constituency. This means that the framers of the Constitution incorporated Article 164(4) specifically to address the situation where an individual, while not yet a member of the Legislature, is appointed as a minister for a limited duration. 

The court further observed that article 164(4) is intended to address the circumstances where, due to political exigencies or the need to avail the services of an expert in a specific field, it becomes imperative to include such an individual in the Council of Ministers, even if he is not, at that particular moment, a member of the Legislature. The fact that such an individual is not a member of the Legislature is not regarded as an insurmountable impediment to their appointment. This is what is precisely done under this article. An individual appointed as a Minister despite not being a member of the Legislature is granted a period of six months to acquire membership of the Legislature.

In S.R. Chaudhuri v. State of Punjab (2001), the Supreme Court observed that the absence of the expression from amongst members of the legislature in Article 164 (1) is indicative of the fact that while under that provision a non-legislator can be appointed as a Chief Minister or a Minister that appointment would be governed by Article 164(4), which places a restriction on such a non-member to continue as a Minister or the Chief Minister unless he can get himself elected to the Legislature within the period of six consecutive months from the date of his appointment. Article 164(4) is, therefore, not a source of power or an enabling provision for appointment of a non-legislator even for a short duration. It is actually in the nature of a disqualification or restriction for a non-member who has been appointed as a Chief Minister or a Minister to continue in office without getting himself elected within a period of six consecutive months.

It is incorrect for some to draw a parallel between Mrs. Sunetra Pawar’s appointment as the Deputy Chief Minister of Maharashtra, despite her already being a member of the Rajya Sabha and the case of Mr. Nitish Kumar. Mrs. Pawar’s selection as Deputy Chief Minister took place while she was not a member of the Maharashtra Legislature and therefore she is entitled for this window of six months. Should she fail to become a member of the Legislature within this six-month timeframe, she would be required to step down from the post of Deputy Chief Minister. In contrast, Mr. Nitish Kumar assumed the office of Chief Minister on the basis of his membership in the Legislative Council which he has since resigned.

The deliberations of the Constituent Assembly coupled with the various rulings of the Supreme Court cited above lead to an inescapable conclusion that Article 164(4) pertains to the appointment of a person who is not a member of the Legislature to a ministerial post, granting him a period of six months to acquire membership. However, a person who is already a member of the legislature and holds a ministerial position acquired on the strength of such membership  cannot, after resigning from his legislative membership, invoke this Article to continue holding the ministerial post for a further six months. Furthermore, Nitish has tendered his resignation from the legislative council in the light of his acquiring a membership of Rajya Sabha. 

In view of above discussion, act of Nitish to continue in the office of Chief Minister relying on article 164(4) is both constitutionally invalid and constitutes a complete negation of the intent of the founding fathers of the Constitution. He therefore ought to resign from the office of Chief Minister forthwith paving the way for the appointment of a successor to that post.

END OF ARTICLE