ORDER S.S. Dhavan, J.
1. This is a petition by Sri Har Sharan Verma under Article 226 of the Constitution praying for the issue of a writ in the nature of quo warranto to Sri Chandra Bhan Gupta, Chief Minister, Government of Uttar Pradesh, Lucknow, to show by what authority he claims to hold the office of Chief Minister and to be a member of the Legislative Council. The petitioner asks for a declaration that Mr. Chandra Bhan Gupta's appointment as Chief Minister and nomination to the Legislative Council are invalid and unconstitutional, and he also wants this Court to declare the office of the Chief Minister and the seat held by Mr. Chandra Bhan Gupta vacant, and issue an injunction against Mr. Gupta restraining him from functioning its Chief Minister or as a nominated member of the U. P. Council. The respondents to this petition are Sri Chandra Bhan Gupta and Dr. B. Ramkrishna Rao, Governor of Uttar Pradesh.
2. In his affidavit supporting the petition Sri Har Sharan Varma states that he is a ratepayer and a voter of the Lucknow City Constituency for the Uttar Pradesh Legislative Assembly. The allegations on which this petition is founded are these : Mr. Chandra Bhan Gupta was appointed Chief Minister of Uttar Pradesh by the Governor on 7th December, 1960. A gazette notification, which according to the petitioner, announced this appointment was published in the Gazette Extraordinary dated December 7, 1960. Mr. Gupta was not a member of the Uttar Pradesh State Legislature at the time of his appointment. The petitioner alleges that Mr. Gupta contested the election to the Legislative Assembly twice--once from the Lucknow city constituency in 1957, and again from Maudaha (Hamirpur) Rural constituency in 1958--but was defeated in each election. But on 23-1-1961 the Governor of Uttar Pradesh nominated him a member of the Legislative Council in a vacancy caused by the resignation of a city member, Dr. B. B. Bhatia of Lucknow, which however, was not gazetted until the 28th of January 1961.
3. The petitioner alleges that Mr. Chandra Bhan Gupta "got himself nominated as a member of the U. P. Legislative Council under Article 171(5) of the Constitution although he could not claim to have any special knowledge in respect of literature, science, art, co-operative movement or social service." According to the petitioner, Clause (5) applies only to those persons who do not seek elections but have special knowledge in certain subjects and whom the Governor nominates in the public interest as members of the Legislature. But this clause "cannot he availed of as a back-door for the nomination of persons who lost popular election more than once." The petitioner has referred to a statement alleged to have been made by Mr. Chandra Bhan Gupta to the pres on 24th January 1961, that "his nomination was a stopgap arrangement''. This, according to the petitioner, was a clear admission that Mr. Chandra Bhan Gupta's nomination was made for reasons of political expediency and not on merits and "was, therefore, a fraud on the Constitution." He contends that Mr. Chandra Bhan Gupta's nomination as member of the council and appointment as Chief Minister are illegal, and he has invoked the jurisdiction of this court to invalidate both. He says that, as a voter of the U. P. Legislative Assembly he is interested in the matter and has a right to move this court.
4. I have heard the petitioner as well as his counsel at considerable length. He addressed the court in person on a previous day and then made a request for adjournment to enable him to engage counsel. This was granted and the petition was re-heard today.
5. The petitioner's first argument is that Clause (1) of Article 164 of the Constitution prohibits the appointment of any person not a member of the Legislature as Chief Minister. The relevant portion of this clause runs thus "The Chief Minister shall be appointed by the Governor and thp 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." The petitioner contends that this clause makes a distinction between the Chief Minister and other ministers, and therefore, the word "minister" in this Article does not apply to the Chief Minister. It follows that he cannot take advantage of Clause (4). He conceded that, under Clause (4), a minister other than the Chief Minister may hold office without being a member of the Legislature for not more than six months at the expiry of which period he shall cease to he a minister; but he argued that word "minister'' in this clause does not include the Chief Minister. I am unable to agree.
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 enters upon his office; the fourth provides that a minister who is not a member of the Legislature tor six consecutive months shall vacate his 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 exempt from the Constitutional duty to take the oath of office, and shall not cease to be a minister if after his appointment his election to the Legislature is set aside and he is not re-elected within six monhs of being unseated. Moreover, the salary and allowances of the Chief Minister, unlike those of his colleagues, will not be under the control of the Legislature of the State as in the case of his 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.
6. I shall now try to summarise the other argument of the petitioner on this part of his case which he advanced at the initial stage. He frankly confessed that he was "a plain citizen not well-versed in the intricacies of the law," and it is not surprising that his submissions of law were inextricably mixed up with political arguments. I have reproduced below in my own words a paraphrase of his legal arguments which was read out to him and which he said correctly represented his case.
He contended that it was clear that Clause (1) of Article 164 makes a distinction between the appointment of the Chief Minister and the other ministers at least in one respect; the Chief Minister shall be appointed by the Governor and the other ministers by him on the advice of the Chief Minister. This shows that the Chief Minister must be appointed before the other ministers for there must be a Chief Minister to advice the Governor before the others can be appointed. But how will the Governor appoint the Chief Minister and whom will he select? He cannot pick a mere nobody from the street and make him the Chief Minister. He must select him according to the cardinal principle of parliamentary government that the Chief Minister must be a man enjoying the confidence of the majority of the elected members of the Legislature. Under Clause (2), he and his council of ministers shall be collectively responsible to the Legislative Assembly of the State; it follows that there must be an elected member of the Legislature, for how can the Legislature have or even purport to have confidence in a person who is not even its member, and how can such a person be responsible to the Legislative Assembly of the State while remaining outside it? For these reasons, the petitioner contended, the selection of a person who is not a member of the legislature as Chief Minister is impliedly prohibited by Article 164, and also conflicts with the basic principle of parliamentary government.
7. The petitioner's counsel at a later stage relied on the conventions of the British Constitution, and pointed out that the Supreme Court had held that "Our Constitution, though federal in its structure, is modelled on the British Parliamentary system," and that 'in the Indian Constitution therefore, we have the same system of Parliamentary executive as in England, and the of Council of Ministers consisting, as it does, of the members of the Legislature is like the British cabinet, a hyphen which joins, a buckle which fastens the legislative part of the State to the Executive Part. 'The cabinet enjoying as it does a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions."
9. The petitioner argued that the Governor violated the conventions of the British Constitution which have been held by the Supreme Court to be the foundation of parliamentary government in India as established by our own Constitution, and the appointment of Mr. Chandra Bhan Gupta when he was not a member of the legislature was a gross violation of principles which are implied in Clauses (1) and (2) of Article 164. He contended that this Court has the power under Article 226 of the Constitution to issue a writ of quo warranto asking him to show cause why his appointment as Chief Minister should not be invalidated as unconstitutional. This in brief is a paraphrase in my own words of the combined arguments of the petitioner and his counsel, which were based partly on the implications of Article 164 and other provisions of the Constitution and partly on British convention.
10. I shall first consider whether any basic principle of parliamentary government was violated when the first respondent was appointed Chief Minister, and if so, whether this Court can interfere in the exercise of its powers under Article 226. I agree that the principle that the Chief Minister of a State or the Prime Minister of the Union must have the support of the majority of the members of the Legislative Assembly or the House of the People (as the case may be) is the foundation of parliamentary democracy as established in India by our Constitution. But it is not necessary for me to consider whether this political doctrine can be enforced by the Courts; as it is not the petitioner's case that Mr. Chandra Bhan Gupta does not enjoy the confidence of the majority of the members of the Legislative Assembly of Uttar Pradesh. This vital allegation is absent from the petitioner's affidavit.
On the other hand, this Court can take judicial notice of certain facts. According to press reports--the petitioner lias relied on some of them in his affidavit--Mr. Chandra Bhan Gupta was unanimously elected by the members of the legislature who belong to the Congress party which commands an overwhelming majority in the Legislative Assembly. The Court can also take judicial notice of a recent press report that after bis appointment, Sri Chandra Bhan Gupta obtained an overwhelming vote of confidence in the Uttar Pradesh Legislative Assembly after the debate which followed the address of the Governor. The facts stated in these reports were admitted by the petitioner. It is therefore obvious that Mr. Chandra Bhan Gupta was selected by a majority of the members of the Legislative Assembly as their leader and the basic principle that the Chief Minister must have the confidence of the legislature has not been violated by his appointment as Chief Minister.
11. The next question is whether the Governor can appoint a person Chief Minister who, though commanding the confidence of the legislature, is not a member of it at the time of his appointment It is true that in 1922 a convention was established in Britain that the Prime Minister should be a member of the House of Commons. I may agree that it is desirable that a similar convention should be established in this country, that the Prime Minister of the Union or the Chief Minister of a State, must he an elected member of the Lok Sabha or the Legislative Assembly, as the case may be. But the issue in this case is whether our own Constitution absolutely prohibits even a "stop-gap arrangement'' (to quote the petitioner's own words) like the appointment of the first respondent. More precisely can 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 acquires membership of the legislature?
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 election to that House within six months, is not prohibited by the Constitution 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.
12. It appears to me, therefore, that the appointment of the first respondent as Chief Minister was not illegal.
13. I shall now consider the petitioner's challenge to the first respondent's membership of the Legislative Council. He argue