- By Pratiksha Jain - Career College of Law, Bhopal

                        When we see a judge or magistrate sitting in the court you are actually looking at the results of thousands years of legal system evolution.                     It's doubt full that anyone asked to designed a justice system would be choose to copy the English and Welsh model ,

                            It's contradictory in places and rather confusing, however the judiciary is still changing and evolving to meet the needs of our society and despite its oddities it is wisely regarded as one of the best and most independent in the world .

Judicial system before independence 1947 

The judges in pre-independence india were the symbol of emperial power ,Hardly after 20 years of Ranjit singh death the whole continent of India had passed into the hands of East india company. T

Judicial system after independence 

Today ,when we look at the judiciary of India , it is very well organised nd systematic.As the saying roo goes Rome was not built in a day in the same way the present Indian judiciary was not a sudden creation . 

Difference of Indian judiciary pre and post independence judiciary 

Pre Indian judiciary  

The British exploited India's traditional judicial system to their own advantage for some time .I need was arising for dispensing civil as well as criminal matters .and so subsequently in 1772 a civil court and criminal court in every district of Warren Hastings .the civil court was precise over via collector who dis who administered justice with the help of Indian subordinates .and Indian officer presided over The criminal court ka Aziz and muftis assisted him although there was a fine system of judiciary ,there was no uniformity in the law. the personal law are applied in civil courts and Muslim law were applied in criminal cases. for while the judges of the supreme court established in 1774 try to in uniform apply English law .however,  As one person could not control the judiciary as well as the executive honestly efficiently both these things need to be separated .cornwallis had his hands behind this. to make the judicial system more effective provincial circuit criminal courts were established . provincial civil  courts were initially established at Dhaka Murshidabad Kolkata and Patna board district level courts were preceded by the English judges munsif codes and registrar courts were introduced with Indian at their head .

Post -independence Indian judiciary 

The first move after post independence was the evolution of the privy council the Indian constituent assembly passed the abolition of privy council jurisdiction act in 1949 to abolish the jurisdiction of privy council in respect of appeal from India and also to provide for pending appeals . 

Presently the courts in Indian legal system broadly consisted of the supreme court of India high court of India subordinate court civil court criminal courts and special tribunals.

1.The Supreme court of India

The supreme court which is the highest court in the country both for the matter of ordinary law and for interpreting the constitution is in institution created by the constitution the supreme court in India has inherited the jurisdiction of both the privy council and the federal court after the evolution of the privy council however the jurisdiction of the supreme court under the present constitution is much more extensive than that of the federal court and privy council the supreme court and 13th appeals in civil criminal and other cases from high court and other tribune it has also written jurisdiction for enforcing fundamental right it can advise the president on the reference made by the president constitution of the fact and the law .

2.The High courts

Second in the hierarchy come the high courts as we know before the constitution of 1950 came into existence the High court has already been established in the country under the British act 1861 the remaining High court was established or continued under the constitution or under special acts High court for each state or group of state has a pilot civil and criminal jurisdiction over lower courts some high courts Bombay Calcutta Delhi have ordinary original civil jurisdiction for their respective cities High court can also here reference is made by the income tax appellate tribunal under the income tax act and the tribunal the writ jurisdiction wasting wide the huts today was before the constitution wasted only in the presidency towns.

3.Subordinate courts 

Finally there are various subordinate civil and criminal courts original and palate functioning under ordinary law please have been created under the constitution but under the laws of the competent legislature civil courts are created mostly and the civil court act of each state criminal courts are created Mainly under the criminal code of procedure.

4.Civil courts 

  In each district there is a district judge with the number of additional district judges attached to the court below that court is court of judges that court are created under the State law .

5.Criminal courts 

Criminal courts in India primary consists of the magistrate and the court of session magistrates have been divided into judicial and executive magistrate the court of session can try all offences and has the power to award any sentences prescribed by the law for the offence but a sentence of death requires confirmation of the High court .

6.Special Tribunal

  Besides the court which forms part of the general judicial setup there are host of specialised tribunal dealing with the direct taxes and copyrighted for the trial cases corporation there are special judges are appointed for the tribunal cases .

Conclusion 

A peculiar feature of the legal development in India was that following the government and delivered to create a system of a quotes without ever attempting to develop a body of law conscious efforts to remove these defects were made by developing a cold and body of law and independence of the judiciary is fairly well as shot by the constitution itself an adequate precautions have been taken to help the judiciary to discharge their functions effectively .

We live in an era of digitization, where most functions of business and society are critically dependent on data of many different forms. As the digital revolution continues, the digitization of human activities generates large amounts of data, having the potential to be both disruptive and transformative.

Why digital justice?
Today’s courts are turning to digital justice to help them overcome an array of challenges facing the legal system. Among the most serious of these challenges are the following:

*Limited resources: Court systems are strained to the breaking point as they take on more cases with fewer prosecutors, clerks, judges, and employees. At the same time, they must operate under conditions of increasingly tight austerity. The result has been a huge backlog of cases.

*Overuse of paper: The vast majority of court systems are still paper-based. For example, judicial systems in the United Kingdom generated a million pages of documents a day-365 million pages a year-before moving recently to a digital justice platform.

There are huge costs and inefficiencies in producing, transporting, and storing such quantities of paper. Preparing a bundle of documents for trial, and then making copies of the bundle, requires significant staff time. It’s also difficult to move pages and add new material if additional evidence comes to light.

*Transparency: In many jurisdictions, paper-based procedures create opportunities for corruption. Charge sheets and other documents may be tampered with, or simply go missing. Missing documents may result in cases being thrown out before the guilt or innocence of the defendant is determined.

*Remote working and real-time collaboration: Using digital technology, attorneys and judges can access information remotely, including online legal documents, case bundles, case libraries, and up-to-date schedules of hearings, as well as communicate and collaborate in real time.

The main objections to remote courts, so far, have been framed as threats to open justice and procedural justice. It has been argued, in short, that remote hearings are insufficiently transparent and indeed are not fair hearings. I think it balanced to conclude, from the research thus far, that most judges and lawyers who have actually participated in remote hearings do not share these concerns. Experience of using the systems in practice has often changed views.

"My thinking about the future of courts has always extended far beyond video hearings. We are just warming up."

Conclusion
The rise of digital justice offers courts the ability to serve justice with greater efficiency and transparency, at lower cost, while making justice more accessible to all. For the courts themselves, for attorneys, plaintiffs, defendants, and other participants in legal cases, and for a society dependent on a stable, well-functioning legal system, digital justice promises to be a welcome transformation indeed.

Yell for a better participation!>>

There is a need for judicial reform. But does artificial intelligence and modern technology have played an essential role in enhancing it? >>

In the current era where the world is turning towards technology modernization digitization. How could the justices survive in a country with centuries-old systems? Where people are suffering from the pendency of cases. And which has increased due to the breakout of the Novel Coronavirus pandemic? In India judiciary has indicated growth remarkable for sight for adopting artificial intelligence. The E-Committee for the National Judiciary of India was first solidified back in 2004 with the objectives (ICT) and enablement of the Indian Judiciary System. Back then E-Committee has introduced two phases of the e-courts Project:>>

• Phase I: - It focused on the basics of digitization, set up of hardware, assuring internet availability and accessibility, digitization of cases and their records, and operation of the e-court fora.>>

• Phase II: - It provided independent operation and catered to the need of the litigants, such as (NJDG) means National Judicial Data Grid, which helps permit citizens to check pendency cases across the country via virtual courts, e-Seva Kendra, and the e-court services App.>>

Though the two phases - Phase I and Phase II helped the Judiciary becoming more efficient. >>

But is that sufficient enough? Or ceased to function in operating existing mechanisms and skills?>>

E-Court Phase III: - DVD (Draft Vision Document) endorsed a plan of action for phase III of the e-court Project. It aspires to adopt an 'ecosystem approach' where systems are interacting with one another. It also suggested ambitions such as the registry of case laws, scheduling, a repository of cases, a digital case management system, the interoperability Justice system, e-filing, and digital hearings.>>

All the over mentioned features based on the Artificial Intelligence System will enable data-based decision-making for judiciaries easier. The system also combines the substantial body of judicial development to foster legal literacy.>>

What's good about it?>>

(1) Database of legal Precedents - >>

A freely available database for all legal precedence created by the Judiciary enables lawyers from all backgrounds. To underwent high-quality legal researches and for literacy by permitting citizens to read judgment at a fair cost.>>

(2) Data Protection- >>

It promises to capture the minimum personally-identifiable data keeping the transient data in memory only and storing it in deep.>>

(3) Standardization- >>

Presently, various lower courts use other methods to categorize specific cases, usage of different ways and vocabulary makes research difficult in Shreya Singhal VS Union of India. It will also enable the interchange of data. And help to do research and operating easier.>>

When reasonably formulated and executed, digital methods can help courts optimize and refocus inward strategies, enhance assistance to users, and Democrats castigate passage to justice. >>

Many government services, arbiter systems around the world are proceeding to turn to digital solutions to grasp their crises. Amid the many challenges that justice systems face, no two court systems are similar, and all have unique obstacles. Hence, there is not one way but many ways for a court to become "smart.">>

While the court system custom of the software is as old as the computer, the improvement of the Internet and cloud computing services have largely improved the scope of problem-solving solutions accessible to courts.>>

Today, myriad tools are handy that can address different facets of the operation of courts and citizen's commerce with them. This spectrum from internally-facing executive tools, to systems for retaining the virtue of and making available court records, to externally facing resources and interfaces for court.>>

The lack of openly available information on the law and court methods can deter immigrants from even venturing to access courts to attempt justice. Online resources (optimized for access and application via computers and cell phone devices) can make information on the law, legal resources, and court procedures instantly accessible to those with an Internet connection. Functions like a pragmatic guidance desk can go one step further and empower citizens to operate these sources or counter to many of their common inquiries and needs.>>

These resolutions build simultaneous report executive’s operations to allow not just automated access to records. But combined processes for tracking the growth of and leading actions related to a case during its lifecycle. >>

These integrated arrangements can help authorities and administrators track cases. And also permits individual citizens and resident advocacy groups to witness the improvement of a particular case.>>

Collaboration devices may come in many varied forms and may be segments of document and case management solutions. For example, they can enable personal communication, footnotes of records, and explaining among the different parties of a case and the judge. These can expedite hearings and enable better-advanced coordination between the parties.>>

Cloud-based video conferencing tools enable individuals to engage from a remote location. These are often sufficient for routine or preliminary procedures. It is often applied when used in connection with a minor violation, these mechanisms can speed up court proceedings and reduce burdens associated with bringing jailed respondents by allowing them to attend their hearing virtually from their prison. >>

For mobility or economic means, video conferencing can decrease the course cost of reaching justice through courts by permitting them to associate from an area and electric device of their preference, whether their computer or mobile phone or any other devices at a different public convenience. Courts in various nations have found fertile uses for these answers. They began fully digital courtrooms from scratch.>>

Courts meet resource necessities as do different elements of the government. However, an ever-growing caseload is not always coupled with a growing allocation of government resources; the result is often delayed. Digital transformation permits executives to run their operations productively and do more with less. Program resource devising mechanisms that govern finance offices and human resources implement equally to both court administration. As well as other public and private sector organizations. Other applications tailored to the demands of court management can, for example, streamline the processing of court servilities or case files, which can have a beneficial trickle-down effect on the end-user in terms of faster responses to their submissions.>>

Public trust is an important component supporting the effectiveness of the justice system. But one that is sorely lacking in some countries. Depravity and opaque court operations are a brick wall for many systems.>>

While there is no replacement for involvement in ensuring the neutrality of judges and prosecutors, technology can improve the equity division advance liability through different means, including the development of mechanisms that improves way to information (e.g., enabling free access to transcripts, court documents, and comments online); methods, to provide feedback such as court user reviews and complaint remedy (e.g., Kenya's judiciary dialogue cards); and, ensuring that administrators and community advocates can maintain visibility to processes that are prone to corruption.>>

Courts and tribunals have a fundamental mission for society – ensuring justice for all citizens. Yet, marginal and disadvantaged neighborhoods often face difficulties that deter them from seeking justice. Here too, digital transformation can assist in ensuring that more people control access to justice by lessening costs of interaction with the justice system. Innovative modes of digital alteration have the potential to democratize access to justice. They empower citizens to more effectively uses the justice system without depending on delegates such as law firms and other doorkeepers.>>

CORONA VIRUS Epidemic has caused widespread severance across the whole of the criminal justice. >>

People do not want courts, but they want the outcomes courts bring. >>

Even if that was the ending note that Professor Richard Susskind made, it is of necessity to answer the question. And how to provide state-based dispute resolution to solve the problems? What do people have? What is a digital court, and what is meant by the term alteration of the civil services? >>

Now, to start with, some key issues should be taken into consideration. The first is the problem itself, in particular, that around 46% of people in our world live under the protection of the law, and in most countries, judicial processes are taking a long time to be processed or are just expensive for people.>>

When it comes to the United Kingdom, it can be said that the judiciary system does not operate efficiently. In other words, it is broken and needs to be switched. So, the problem here is what is the value that our court system delivers to society? And whether a digital society can deliberate that in an entirely new way? The answer can be found in the mindset concerning the future of courts and the discussion about automation and transformation. >>

Automation is something that people have on their minds when they are talking about technology. While transformation is the way technology allows achieving goals that were not possible earlier. In this vein, we are evidencing the conversion of public service. The "1st generation issue" is consisted of two elements: the system of online courts and online judges and the extended court. >>

The online judges will be human judges that will electronically be receiving the evidence. And giving the decision to it in an identical manner. It means that the communication between the two parties will be based on a digital dialogue. And that would be the "extended court."

However, in this means, the "AI Fallacy" is not wicked important. Being based on algorithms while trying to replicate and copy human behavior will not probably be met with success, while for the foreseeable future machines will not be capable of taking judicial decisions. >>

And last but not least, it could be argued, that the above-mentioned "problem" establishes a global, rather than a social problem, while the approach is that the online courts can link the gap that has been created between perception and fortifying human rights. And all in all, the decade that has just started will be exciting due to technology and will bring a lot of changes in the nearby future.>>

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                  Your Duty as a Human Being

A Simple Question That You Can Ask Yourself:

“Perform your prescribed duty, for action is better than inaction. A man cannot even maintain his physical body without work.” Bhagavad Gita 3.8

Think about the time and energy you commit to avoiding your responsibilities (come on, we all do it, I’m just about a master procrastinator when I need to be). It’s difficult to think of a worse kind of investment of your resources that you can possibly make: fleeting relief in the short-term and non-existent returns in the long-term. 

I like taking a much broader approach. When I just don’t have it in me to create something with verve, I can still perform my prescribed duty of self-cultivation by reading or meditation.

Inaction disguises itself in clever ways, changing like a shapeshifter throughout the history of humankind. Maybe a thousand years ago it looked like avoiding the task of going out and tending to the fields. Today it seems we often encounter it on the internet. It looks a little different for all of us. Every time you distract yourself from the work you really should be doing, whatever it may be — physical, emotional, spiritual — is more time you are not performing your prescribed duty.

The question that helps me put the really important things in life into perspective is actually pretty simple, and I enjoy pondering it from time to time:

“What am I here to do?”

Part of: GS Prelims and GS- II- Polity

In news: Union Government is planning to bring a Bill to Parliament to clarify some provisions in the 102nd Constitutional amendment Act (CAA) to restore the power of the states to identify backward classes.

• In India, separate OBC lists are drawn up by the Centre and each state concerned. Articles 15(4), 15(5) and 16(4) expressly conferred power on a state to identify and declare the list of socially and educationally backward classes.
• The amendment was necessitated after the SC in its Maratha reservation ruling upheld the 102nd CAA but said the President, based on the recommendations of the National Commission for Backward Classes (NCBC), would determine which communities would be included on the state OBC list.

What is the 102nd Constitution Amendment Act of 2018?

It inserted Articles 338B and Article 342A (with two clauses) after Article 342.

• Articles 338B deals with the structure, duties and powers of the National Commission for Backward Classes.
• Article 342A says that the President, in consultation with the governor, would specify the socially and educationally backward classes.

About the Constitutional (127th) Amendment Bill, 2021:

• It will amend clauses 1 and 2 of Article 342A and also introduce a new clause 3.
• The bill will also amend Articles 366 (26c) and 338B (9).
  • It is designed to clarify that the states can maintain the “state list” of OBCs as was the system before the Supreme Court judgment.
  • Articles 366 (26c) defines socially and educationally backward classes.
• The “state list” will be completely taken out of the ambit of the President and will be notified by the state assembly.

What is the procedure for passing Constitutional Amendment Bills?

As per the procedure laid down in the Constitution, Constitution Amendment Bills can be of three types viz.

• requiring a simple majority for their passage in each House.
• requiring a special majority for their passage in each House i.e., a majority of the total membership of a House and by a majority of not less than two-thirds of the members of that House present and voting (article 368).
• requiring special majority for their passage and ratification by Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures (clause (2) of article 368). 
• A Constitution Amendment Bill under article 368 can be introduced in either House of Parliament and has to be passed by each House by special majority.
• There is no provision of joint sittings on a Money Bill or a Constitution Amending Bill.

Strangely unique that a Chief Minister lost her seat, but the party registered a bigger victory than achieved in the previous Assembly Election. West Bengal Chief Minister Mamata Banerjee earned this distinction on May 02, 2021 as the results for West Bengal Assembly election were announced. Mamata Banerjee pushed the Modi-Shah juggernaut of the BJP off the track in West Bengal as her Trinamool Congress won 213 of 292 seats that went to the polls between March 27 & April 29, 2021. But she lost the election from Nandigram Constituency to Suvendu Adhikari of the BJP.

The results left a dilemma involving political morality giving rise to the following questions of law;

1. Whether a non-member of the Legislature can be appointed as Chief Minister under the Constitution of India?
2. If the answer to the said question is in the affirmative, then what is the time period for a non-member of the Legislature to be permitted to become the Chief Minister?
3. Whether the appointment of a person, who is not a member of the House, as Chief Minister will not be against the democratic principles and national interest?
4. If the answer to the said questions is in the affirmative, then whether a non-member, who fails to get elected during the period of six consecutive months after he/she is appointed as a Minister or while a Minister has ceased to be a Legislator, can be reappointed as a Minister, without being elected to the Legislature after the expiry of the period of six consecutive months?

Article 164 (4) of the Constitution of India provides that 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 clause [originally taken from Section 10 (2) of the Government of India Act, 1935], provides that there is no bar for anyone who is not a member of Legislature to become Minister. However, some important objections were raised in the Constitutional Assembly during the enactment of Article 164 (4) [Article 144 (3) of the Draft Constitution], which is relevant to discuss before proceeding to deal with issue in hand. Prof. Shibban Lal Saksena in the Constituent Assembly Debates on June 01, 1949 Part I (Volume III) suggested to change the word “Legislative Assembly” in place of “Legislature of the State” in Article 144 (3) of the Draft Constitution. He opined that:

“That means that if a person is not a Lower House but is made a Minister, and supposing that the man fails to get elected to the Lower House on the basis of adult suffrage in six months, then under this Article we are providing that he/she can still continue to remain a Minister if he/she is nominated to the Upper House by the Governor. I think it is undemocratic that our Ministers should be persons who cannot even win an election by adult suffrage. I have therefore suggested that we should say ‘Legislative Assembly’ instead of Legislature’ in this Article. In the Assembly nobody is nominated and all Ministers shall therefore have to win an election by adult suffrage within six months of their appointment in order to continue to be Ministers. Otherwise persons who are not representatives of the people but are favourites of the Premier may be nominated to the Upper House in the provincial Legislatures and they can continue to remain Minister under this clause (3) of the Article. I desire that only members who are able the post of a Minister. Anybody who is not able to get elected by member of the Council of Minister.”

Another important objection was raised by Shri R. K. Sidhva (C.P. and Berar: General) in the Constituent Assembly Debates on June 01, 1949 Part I (Volume III) in the following words:

“…I feel that this is merely a repetition or imitation of a clause which exists in the present Government of India Act of 1935. I do not think is necessary now, because, under the new Constitution, the number of members in the provincial legislatures will be ranging from 300 to 600 and I do not think we will be wanting in people to fill even special posts. I am opposed to an outsider who is not a member of the Legislature, however highly qualified he/she may be, being called upon to hold the very responsible Office of a Minister even for six months. From the experience we have gained, we find that in some cases where Ministers have been so appointed, eventually it has led to corruption. After the period of six months, somebody has to vacate a seat and it has so happened in one or two provinces that to make room for this Minister, that gentleman had to be provided with some job for which he/she was not qualified. Therefore, when we are going to have large Houses in which there will be members with vast experience, and experts in many respects, I feel that it is not proper, and it is not a very good principle to imitate what is existing in the Government of India Act, 1935, and say that if the Chief Minister feels that so and so who is not a member is required for expert advice, he/she should be taken as a Minister. Sometimes, the Chief Minister would like to favour somebody. In the name of the special qualifications that he/she may possess, he will be asked to become a Minister, and at the end of six months, he/she will have to be made a member of the Legislature, because he/she cannot hold the Office after six month. As I stated, Sir, some other member who will be asked to vacate will have to be offered something and this will lead to corrupt public life.”

Dr. Ambedkar rejected the said objections or any other proposal on the said Article on two grounds:

1. 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 which, although it may be perfectly good, might have annoyed the Constituency and he/she might have incurred the displeasure of that particular Constituency. It is not a reason why a member so competent as that should be not permitted to be appointed a member of the Cabinet on the assumption that he/she shall be able to get himself/herself elected either from the same Constituency or from another Constituency. After all the privilege that is permitted is a privilege that extends only for six months. It does not confer a right to that individual to sit in the House without being elected at all. 

1. 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 if he/she is a member of the Cabinet, if he/she is prepared to accept the policy of the Cabinet, stands part of the Cabinet and resigns with the Cabinet, when he/she ceases to have the confidence of the House, his/her membership of the Cabinet does not in any way cause any inconvenience or breach of the fundamental principles on which Parliamentary Government is based. “

Ultimately after the long-drawn debate Article 164 (4) was finalized. On a plain reading of Article 164 (4) or Article 75 (5), it is evident that the Constitution makers desired to permit a person who is not a member of either House to be appointed as Minister for a period of six months and if during the said period she/he was not elected to either House, he/she would cease to be Minister.

Article 164 of the Constitution of India deals with appointment of Chief Minister and other ministers. It reads as follows:

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.

However Article 164 (4) provides as follows:

"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."

The ambit and scope of Article 164 (4) of Constitution of India has already been discussed by the Hon’ble Supreme Court of India in catena of its decision. The Constitution Bench of the Hon’ble Supreme Court in ["Har Sharan Verma Vs. Shri Tribhuvan Narain Singh, Chief Minister, U.P. & Anr.", 1971(1) SCC 616] dealt with the similar issue in detail. The Constitution Bench of the Supreme Court considered the issue whether a person who is not a member of State Legislature can be appointed as the Chief Minister? In the said case, 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 Legislature at the time of appointment. 

Before the High Court, Har Sharan Verma contended that Clause (1) of Article 164 of the Constitution of India prohibits the appointment of any person not a member of the Legislature as Chief Minister. 

Rejecting the challenge, the Allahabad High Court held that a Chief Minister, like any other Minister, can hold Office for six months without being a member of the Legislature.

The High Court held:

"Article 164 is divided into five clauses. The first deals with the appointment of the Chief Minister and other Ministers; the second enjoins the collective responsibility of the Council of Ministers to the Legislative Assembly of the State; [the third makes it incumbent upon the Governor to administer the Oath of Office and of Secrecy to every Minister before he/she enters upon his/her Office; the fourth provides that a Minister who is not a member of the Legislature for six consecutive months shall vacate his/her Office; and the fifth confers upon the Legislature the power to fix the salaries and allowances of Ministers by law. If the word. "Minister" throughout this Article was not intended to include the Chief Minister, it would follow that the Chief Minister is exempted from the Constitutional duty to take the Oath of Office, and shall not cease to be a Minister if after his/her appointment his/her election to the Legislature is set aside and he/she is not re-elected within six months of being unseated. Moreover, the salary and allowances of the Chief Minister, unlike those of his/her colleagues, will not be under the control of the Legislature of the State as in the case of his/her other colleagues. The Court cannot accept an interpretation which will lead to such absurd results. It is clear that the word 'Minister' in clauses second, third, fourth and fifth of Article 164 includes the Chief Minister. Under clause five (sic) a Chief Minister like any other minister can hold office for six months without being a member of the Legislature"

Another issue raised was whether a person who has been elected by the majority of the members of the Legislative Assembly as their party leader be appointed Chief Minister before he/she acquires membership of the legislature? The Supreme Court held as follows:

"I think Clause (4) of Article 164 does not prohibit such a "stop-gap" arrangement. It says that a Minister who for any period of six consecutive months is not a member of the State Legislature of the State shall at the expiration of that period cease to be a Minister. This implies that any Minister can hold Office for six months without being a member of the legislature. I have indicated that the word "Minister" in this clause includes the Chief Minister. It follows that the appointment as Chief Minister of a person who is not a member of the Legislative Assembly but commands its support, pending his/her election to that House within six months, is not prohibited by the Constitution of India nor does it violate the basic principle of Parliamentary Government that the Chief or the Prime Minister must have the confidence of the Legislature. Whether such a "stop-gap" appointment is politically desirable or proper is not a matter for this Court to consider.  It appears to me, therefore, that the appointment of the first Respondent as Chief Minister was not illegal"

The Allahabad High Court thus dismissed the challenge and the case reached the Constitution Bench of Supreme Court of India.

Upholding the High Court Judgment, the Supreme Court said:

"It seems to us that by virtue of Article 177 the Ministers, even if they are not Members of a Legislative Assembly or Legislative Council would be entitled to be present at such a meeting. It seems to us that in the context of the other provisions of the Constitution of India referred to above there is no reason why the plain words of clause (4) of Article 164 of Constitution of India should be cut down in any manner and confined to a case where a, Minister loses for some reason his/her seat in the Legislature of the State".

The said issue was once again raised in ["Har Sharan Verma Vs. State of U.P. & Anr.", (1985) 2 SCC 48]. However, a new argument of the qualification of the Minister was taken that as per the changes brought in Article 173 (1) (a), a person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he-

(a) is a citizen of India, and makes and subscribes before some person authorised on that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule.

Rejecting the above contentions, the Supreme Court held that there is no material change brought about by reason of the amendment of Article 173 (a) of the Constitution in the legal position that a person who is not a member of the State Legislature may be appointed as a Minister subject, of course, to clause (4) of Article 164 of the Constitution which says that 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. The Supreme Court also observed that the debates of the Constituent Assembly does not suggest that a person shall be a member of the Legislature at the time of his/her being chosen as a Minister. An amendment was proposed to that effect in the Constituent Assembly to the draft Constitution but was not accepted, the Court noted. The Court further added that the makers of the Constitution provided for a situation where a Minister may lose a seat in the Legislature after appointment- as the result of an election petition for example - or may not be a member when he/she is appointed.

Verma, a few years later again filed a Petition before the Apex Court challenging the appointment of Sita Ram Kesari as a Minister of State of the Central Cabinet. The Hon’ble Supreme Court in the case of ["Har Sharan Verma Vs. Union of India & Anr.", 1987 (Supp.) SCC 310] made the important observation combining the effect of Article 75 (5) [Pari-Materia to Article 164 (4)] and Article 88 that 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/she would not have any right to vote, he/she would be entitled to participate in the proceedings thereof. 

The Supreme Court in the case of ["S. P. Anand, Indore Vs. H. D. Deve Gowda & Ors.", (1996) 6 SCC 734] considered similar legal issue in a petition filed by one S. P. Anand, where Shri H. D. Deve Gowda, who was not a Member of either House of Parliament was appointed as the Prime Minister of India. His appointment was questioned. The Hon’ble Supreme Court upheld the appointment of Shri H. D. Deve Gowda as Prime Minister and held that:

“…Therefore, even though a Prime Minister is not a member of either House of Parliament, once he is appointed he becomes answerable to the House and so also his Ministers and the principle of collective responsibility governs the democratic process. Even if a person is not a member of the House, if he has the support and confidence of the House, he can be chosen to head the Council of Ministers without violating the norms of democracy and the requirement of being accountable to the House would ensure the smooth functioning of the democratic process. We, therefore, find it difficult to subscribe to the Petitioner’s contention that if a person who is not a member of the House is chosen as Prime Minister, national interest would be jeopardised or that we would be running a great risk…”

In this Judgment, the Supreme Court also noted the speech made by Dr. B. R. Ambedkar in Constituent Assembly in this regard (Reproduced below

"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 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 prepared 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."

A person cannot be consecutively appointed using the provision of 'six months'

In ["S. R. Chaudhuri Vs State Of Punjab", (2001) 7 SCC 126] considered a connected legal issue -

Can a non- member, who fails to get elected during the period of six consecutive months, after he is appointed as a Minister or while a Minister has ceased to be a Legislator, be reappointed as a Minister, without being elected to the Legislature after the expiry of the period of six consecutive months ?

The Supreme Court held that it is illegal 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/her getting himself/herself elected in the meanwhile. "The practice would be clearly derogatory to the constitutional scheme, improper, undemocratic and invalid. Article 164 (4) is at best only in the nature of an exception to the normal rule of only members of the Legislature being Ministers, restricted to a short period of six consecutive months. This exception is essentially required to be used to meet very extraordinary situation and must be strictly construed and sparingly used. The clear mandate of Article 164 (4) that if an individual concerned is not able to get elected to the legislature within the grace period of six consecutive months, he shall cease to be a Minister, cannot be allowed to be frustrated by giving a gap of few days and reappointing the individual as a Minister, without his securing confidence of the electorate in the meanwhile. Democratic process which lies at the core of constitutional schemes cannot be permitted to be flouted in this manner.", the Supreme Court said holding  that reappointment of Tej Parkash Singh as a Minister in the State of Punjab was invalid and unconstitutional.

The Hon’ble Supreme Court in the case of ["Ashok Pandey Vs. Km Mayawati", AIR 2007 SC 2259] reiterated the fact that person who is not a member of Legislative Assembly or Legislative Council can be appointed as Chief Minister or as a Minister. However, it should also be noted that the period of six months implies that the period must “continuously” and not even “intermittently” run. 

Thus, the constitutional position in relation to appointment of Minister which includes Chief Minister is clear that even a non-member of Legislature can be appointed as Minister/Chief Minister but only for continuous period of six months. Within six months, a non-member has to become the member of the House. There are instances where a non-member of the Legislature has been appointed as Chief Minister. This took place in the case of Shri C. Rajagopalachari who was made the Chief Minister of Madras in 1952, or of Shri Anajiah, who was made Chief Minister of Andhra Pradesh, in 1980. 

These precedents make it clear that there is no embargo in appointing a person who is not a member of the Legislature as the Chief Minister of the State. Though technically and legally, one can fairly argue that there is no difference between a non-member (who did not contest the election at all) and a non-member (who contested and lost the election), the question still remains whether it is ethical or moral to appoint a person who lost the election as Chief Minister?