The Trinamool Congress has gained the election in Bengal, however its chief Mamta Banerjee has misplaced the election from Nandigram meeting seat. She’s going to quickly (immediately) be sworn in because the Chief Minister of the state. However the query is whether or not the one that misplaced the election can take the oath of constitutional submit of Chief Minister? Are there any Constitutional Constraints? In response to this, consultants say that there is no such thing as a constitutional bottleneck in turning into Chief Minister if the election is misplaced.
Some questions that come up in your thoughts
– An individual who didn’t contest elections, can he stay a minister or chief minister for six months?
-The one that misplaced within the election, can that particular person turn into the Chief Minister for six months?
Can a number of days after the tip of six months turn into Chief Minister once more for six months?
Reply in Article 164 of the Structure
The reply to those questions is in Article 164 of the Structure. This text says that the governor will appoint the chief minister and on the advice of the chief minister, the governor will appoint different ministers. They are going to proceed as Chief Ministers and ministers until the Governor’s consent. In keeping with Article 164.4, a minister who has not been a member of the Legislative Meeting for six months might be eliminated after the expiry of six months.
The difficulty got here up in 1971
The difficulty got here up earlier than the nation’s highest court docket in 1971, when a petition was filed within the Supreme Courtroom in opposition to the appointment of Tribhuvan Narayan Singh because the Chief Minister of Uttar Pradesh. After this, the instances of creating Sitaram Kesri as Union Minister and HD Deve Gowda as Prime Minister additionally got here to the Supreme Courtroom. All these weren’t elected members of any Home on the time of their choice.
The Allahabad Excessive Courtroom dismissed the petition
Singh was not a member of any Home within the case of UP. The petitioner stated that an individual who shouldn’t be a member of a legislative home beneath Article 164.1 can’t be made a minister or a chief minister. His petition was rejected by the Allahabad Excessive Courtroom and stated that the Chief Minister can stay within the submit for six months like different ministers with out choice. The court docket stated that the minister’s phrase written in Article 164.1 additionally contains the Chief Minister.
Cited the Constituent Meeting debate
Justifying the Excessive Courtroom’s resolution, the Supreme Courtroom cited the Constituent Meeting’s debate and stated that the Constituent Meeting additionally didn’t come to say that an individual who shouldn’t be an MLA or MP can’t be made a Minister or Chief Minister or Prime Minister. The court docket stated that Article 164.Four might be relevant in each case i.e. within the occasion of not being elected a member of a Home after six months, that particular person might be deemed to be routinely faraway from his submit.
Can a non-elected particular person come to the submit twice after a sure time period?
The Supreme Courtroom answered this query in a Punjab case. The court docket stated that with out being elected a member of a Home, an individual can’t be given a ministerial or different submit after repeated six months. This could be in opposition to the soul of Article 146.Four of the Structure and could be enjoying with the Structure. The Courtroom acknowledged that Article 164.Four is like an exception to the overall guidelines, which have been made for a brief interval. This provision clearly dictates that if an individual fails to get elected inside a grace interval of six months, then he can’t proceed within the submit. This provision should be defeated after a interval of six months has handed and it’s essential to reappoint it after a niche of some days. Saying this, the court docket termed the appointment of the minister appointed in Punjab as unlawful.
Only a query of morality
The court docket additionally made it clear in these instances that there is no such thing as a distinction between the one that was defeated within the election or who didn’t contest the election. Senior advocate and constitutionalist Dr. HP Sharma says that the query is simply of morality whether or not an individual who’s defeated in an election can turn into the Chief Minister or not. Nonetheless, courts don’t move any judgment on morality.