Dismissed

Harendra Pratap Singh Advocate v. Sri Narendra Damodar Das Modi, The Prime Minister Of India and Ors.

Patna HC8 Jan 2015CWJC/12371/2014

Case brief

AI extract

What is this about?

The Patna High Court dismissed a public interest writ petition filed by an advocate. The petitioner challenged the appointment of Union and State Ministers to Preserve the requirement of being an elected member of Parliament or the Legislative Assembly. The court held that Articles 75 and 164 do not require Ministers to be elected members at the time of induction, nor does Clause (1-A) impose such

What did the court decide?

The writ petition challenging the swearing in/appointment of various Ministers is dismissed.

Harendra Pratap Singh Advocate Vs Sri… — Constitutional and Fundamental Rights | Patna HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12371 of 2014

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Harendra Pratap Singh, Advocate, S/o Sri Brahma Dayal Singh, 'Freedom Fighter' (Father) and Late Shreemati Teeljharo Devi (Mother), Resident of Village Narbirpur, Panchayat Narbirpur, Police Station @ Thana Koelawar, District Bhojpur (Arrah), Present Address 2A, Kamla Apartment, Kavi Raman Path, Purbee Boring Road, Patna (Near Ex-Chief Minister Bihar, Late Satyendra Narayan Sinha) and Practicing as Advocate, a member of Advocates' Association, Bhojpuri House, High Court of Bihar at Patna (In person).

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.... .... Petitioner

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Versus

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Sri Narendra Damodar Das Modi, The Prime Minister of India, New Delhi-7, Red Kors, New Delhi. 2. Sri Arun Jaitley, the Finance, Defence and Corporate Affairs (Cabinet) Minister of Government of India, New Delhi.

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Sri Ravi Shankar Prasad, the Law and Justice, Communications and Information Technology (Cabinet) Minister, of Government of India, New Delhi.

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Smriti Jubin Irani, the Human Resources Development (Cabinet) Minister of Government of India, New Delhi.

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Dr. Najma A. Heptullah, the Minority Affairs (Cabinet) Minister of Government of India, New Delhi.

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Sri Dharmendra Pradhan, the Petroleum and Natural Gas Independent Charge Minister of State Government of India, New Delhi.

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Sri Prakash Javdekar, the Information and Broadcasting Environment and Forest's Water Resources and Parliamentary Affairs Independent Charge Minister of State, Government of India, New Delhi.

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Sri Peeyush Goyal, Energy, Coal New and Renewable Energy, Independent Charge Minister of State, Government of India, New Delhi.

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Union of India through the Secretary, Home Department, Government of India, New Delhi.

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Sri Jeetan Ram Manjhee, the Chief Minister, Bihar, Patna-1, Ane Marg, Patna.

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Sri Prashant Kumar Shahi, the Environment and Forests, Planning and Development (Cabinet) Minister then the Human Resources Development (Cabinet) Minister (20.05.2014), Government of Bihar, Patna.

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Sri Rajeev Ranjan Singh @ Lalan Singh the Road Development Minister, Government of Bihar, Patna.

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Samrat Choudhary, the Urban Development and Housing Minister, Government of Bihar, Patna.

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The State of Bihar, through the Chief Secretary, Government of Bihar, Patna.

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.... .... Respondents

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Patna High Court CWJC No.12371 of 2014 (2) dt.08-01-2015

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====================================================== Appearance : For the Petitioner : Shri Harendra Pratap Singh, Advocate Shri Priyanka Singh, Adv. For the Respondents : Shri Lalit Kishore, Sr. Adv.(PAAG) Shri Ravindra Priyadarshi, Adv. Shri Sanjay Kumar (ASG) Shri Ravindra Kumar Sharma, CGC ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE)

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The petitioner is an advocate practicing at Patna. He filed this writ petition in public interest with a prayer to issue a writ of quo warranto and/or any other appropriate writ quashing the swearing in/appointment of respondents 2 to 8 as Ministers of Government of India and that of respondents 11, 12 and 13 as Ministers in the Government of State of Bihar.

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2 08-01-2015

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It is stated that though the respondents referred to above were not elected to the House of People (Lok Sabha) or the Legislative Assembly (Vidhan Sabha), as the case may be, they have been inducted into the ministry by administering oath. He contends that with the introduction of Clause-(1-A) of Article-75 of the Constitution of India and Clause-(1-A) of Article- 164 thereof, it is only a person who is elected to the House of People or the Legislative Assembly, as the case may be,

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Patna High Court CWJC No.12371 of 2014 (2) dt.08-01-2015

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that can be inducted into the respective ministries and not otherwise. He submits that the induction of respondents into ministries subsequent to introduction of such specific provisions such as Clause-1-A in Articles 75 and 164 of the Constitution of India, is untenable.

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The petitioner, who argued in person, has also placed reliance on certain precedents.

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Sri Lalit Kishore, Shri Ravindra Priyadarshi, Shri Sanjay Kumar and Shri Ravindra Kumar Sharma, learned counsel for the respondents advanced arguments opposing the Writ Petition. They submit that similar writ petition, filed by the very petitioner, was dismissed earlier.

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The Constitution provides for the formation of Council of Ministers at the Union level and the Council of Ministers at State level. Articles-74 and 75 deal with the Ministry at the Union, whereas Articles-163 and 164 deal with Council of Ministers at State levels. It is beneficial to extract Articles-75 and 164 of the Constitution. They read as under:-

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Article-75: Other provisions as to Ministers-- (1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.

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[(1-A) The total number of Ministers, including the Prime Minister, in the Council of

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Patna High Court CWJC No.12371 of 2014 (2) dt.08-01-2015

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Ministers shall not exceed fifteen per cent of the total number of members of the House of the People.

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(1-B) A member of either House of Parliament belonging to any political party who is disqualified for being a member of that House under Paragraph-2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to either House of Parliament before the expiry of such period, till the date on which he is declared elected, whichever is earlier.}

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(2) The Ministers shall hold office during the pleasure of the President.

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(3) The Council of Ministers shall be collectively responsible to the House of the People

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(4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.

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(5) 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.

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(6) The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine and, until Parliament so determines, shall be as specified in the Second Schedule.

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Article 164. Other provisions as to Ministers (1)The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor:

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Provided that in the States of [Chattisgarh, Jharkhand], Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work.

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Patna High Court CWJC No.12371 of 2014 (2) dt.08-01-2015

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[(1-A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent of the total number of members of the Legislative Assembly of that State :

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Provided that the number of Ministers, including the Chief Minister, in a State shall not be less than twelve :

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Provided further that where the total number of Ministers, including the Chief Minister, in the Council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003 exceeds the said fifteen per cent or the number specified in the first proviso, as the case may be, then, the total number of Ministers in that State shall be brought in conformity with the provisions of this clause within six months from such date as the President may by public notification appoint.

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(1-B) A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under Paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier.].

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(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.

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(3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.

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(4) 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. (5) The salaries and allowances of Ministers shall

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be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule.

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From a perusal of the same, it becomes clear that the Prime Minister is to be appointed by the President, and other Ministers in the ministry of Union, on the advice of the Prime Minister. The Governor is empowered to appoint the Chief Minister for the State; and to appoint other Ministers in the Cabinet, on the advice of the Chief Minister. The main plank of argument of the petitioner is Clause (1-A) in both the Articles. Clause (1-A) which is identical in Articles-75 and 164 is to the effect that the total number of Ministers shall not exceed fifteen per cent of the total number of Members of the concerned Houses. Except that, it has stipulated the ceiling on the size of the Ministry; the Clause has no other purpose to serve.

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The question as to whether an individual must be a Member of the Lok Sabha or Rajya Sabha to be inducted as a Minister in the Union Government or a Member of Legislative Assembly (Vidhan Sabha) or Legislative Council (Vidhan Parishad), wherever it exists, to be inducted as Minister in the State Government; does not pose any difficulty at all. Clause-5 of Article-75 and

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Clause-4 of Article-164 are clear on this aspect. They are to the effect that if a Minister, who was not a member of either House of the Parliament or the Legislative Assembly or Legislative Council, as the case may be, at the time of his or her induction, shall cease to be Minister, after six months, unless they become Members of such Houses. In other words, there is no bar for any individual to be inducted into Ministry, even if he is not a Member of the House of Legislature. Such facility, however, is available only for a period of six months. Within that period, he must become a Member of either of the Houses. If he fails to become a Member of Legislature of whatever kind, at the respective level within the stipulated time, he ceases to be a Minister. Clause (1-A) which was inserted in the respective Articles, for the sole purpose of restricting the size of Ministry. By no stretch of imagination, it can be construed as the one, stipulating any qualification or condition precedent, for a person to be inducted into the Ministries.

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It is also brought to our notice that the petitioner made a similar attempt by filing C.W.J.C. No.15535 of 2012 raising objection to the induction into the Ministry vis-à-vis Dr. Man Mohan Singh, the then

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Prime Minister of India and Mr. Nitish Kumar, the then Chief Minister of Bihar. A Division Bench of this Court dismissed the petition through order dated 28.3.2014 passed in L.P.A. No.61 of 2014.

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Reliance is placed on certain precedents.

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We find that they do not at all govern the matter in issue and when the language of the Articles itself is clear and unambiguous, there is no need to seek help from the decided cases.

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We do not find any force in the submission of the learned counsel for the petitioner.

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We, therefore, dismiss the writ petition.

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Interlocutory application, if any, stands

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disposed of.

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There shall be no order as to costs.

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(L. Narasimha Reddy,CJ)