ARTICLE 164 (4) of constitution and appointment of Mamata Banerjee as chief minister.

By Adv. SUDHEESH S KUMAR

                    

                                            Recently All India Trinamool Congress won the election in West Bengal, but unfortunately, their leader Mamata Banerjee lost in Nandigram. even though she has lost the election she has sworn as the chief minister of the state.

whether there any legal validity for her appointment. let's take a look

Article 164 of the constitution - deal with the appointment of the chief minister and other ministers

Article 164(4) states that if a person who is not a member of the legislature of the State becomes the Minister for 6 consecutive months he shall cease to be minister at the expiration of that period.

Hence the person can become a minister without electing only for a period of 6 consecutive months.

In the case Har Sharan Verma vs Tribhuvan Narain Singh -  in the case of the appointment of Tribhuvan Narain Singh as Chief Minister of Uttar Pradesh was challenged on the ground that he was not a member of either house of the legislature at the time of appointment .the supreme court considered the issue of whether a person who is not a member of the State Legislature can be appointed as the Chief Minister?  

The court held that the chief minister like any other ministers can hold office for 6 months without being a member of the legislature. 

Hence the case implies that, if a person has been elected by the majority members of legislature assembly as a chief minister it is valid even if that is political or not.

In history, we can see that K.P Tewari has appointed as the minister of   Uttar Pradesh was not a member of either house. Likewise H.D. Deve Gowda as the Prime Minister of India, who was not a member of either House of Parliament at the time of appointment.

In S.R. Chaudhuri vs State Of Punjab - In this case, the issue was whether a person  who has been appointed as minister without being elected to the legislature can be considered for reappointment after the expiry of 6 consecutive months.           

The court held that it would be violating the Constitution to permit an individual, who is not a member of the Legislature, to be appointed a Minister repeatedly for a term of "six consecutive months", without him getting himself elected in the meanwhile. Article 164(4) is only an exception to the normal rule of only members of the Legislature being Ministers. This exception is essentially required to be used to meet a very extraordinary situation and must be strictly construed and sparingly used.

concluding as per precedents there is nothing unusual for the appointment of  Mamata Banerjee as chief minister. but we have to wait for a period of 6 months to know whether she will be reappointed or not in that post.

I am a Legal professional - practicing as a counsel before the High Court of Kerala and the Trial Courts Mainly in Kottayam Zone. I graduated with a bachelor’s degree in Bachelor of Commerce from Mahatma Gandhi University (2014-17) and a bachelor’s degree in law from University of Calicut (2018-21). From November 2021 onwards till July 2022 , I was a Junior trainee at the Firm Tharakan and George Associates. Now I am an Associate Litigator at Tharakan and George Associates. Civil Commercial litigation, Consumer Litigation , Drafting of Legal Documents , Preparation of Title deeds , Registration of Firms and Society are my primary areas of practice. Opinions expressed by me here are in my personal capacity, and may not be conclusive. My LinkedIn profile is available at https://www.linkedin.com/in/adv-sudheesh-s-kumar-632977234/

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