HAR SHARAN VERMA versus STATE OF U.P. & ANR.

Citation: [1985] 2 S.C.R. 547 · Decided: 10-01-1985 · Supreme Court of India · Bench: E.S. VENKATARAMIAH · Disposal: Dismissed
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Judgment (excerpt)

• 
( 
• 
547 
HAR SHARAN VERMA 
v • 
STATE OF U.P. & ANR. 
January 10, 1985 
(ES. VENKATARAMIAH AND D.P. MADON, JJ.] 
Constitution of India, Article 164 and Art{cle 173(a) (as amended by 
Constitution (Slxteenth) Amendment Act, 1963)-Ejfect of amendded Article 
173(a)-A person not a member of State 
Legislature-Whether can be 
appointed as a Minister in a State even after amendment of Article 173(a). 
Held: Yes. 
Through this petition filed under Article 32 of the Constitution the peti-
tioner prayed for the issue of a writ in the nature of quo worranto to the respon-
dent K.P. Tewari who had been appointed in November, 1984 as a Minister of 
the Government of Uttar Pradesh under Article 164(1) of the Constitution by 
the Governor of the State of Uttar Pradesh even though Shri Tewari was not a 
member of either House of the State Legislature. The petitioner contended (i) that 
in the judgment of Har Sharan Verma v. Shri Tribhuvan Narain Singh, Chief 
Minister of U.P, and Anr., (AIR 1971 S.C. 1331) where it had been held that 
the appointment of a person as Chief Minister could not be challenged t>n the 
ground that he was not a member of the Legislature of a State at the time of 
appointment, this Court had not considered the effect of the amendment of 
Article 173 (a) of the Constitution by the Constitution (Sixteenth) Amendment 
Act, 1963; (ii) that after the amendment of Article I 73 of the Constitution 
by the Constitution (Sixteenth) An1endment Act, 1963 it was not open to the 
Governor to appoint a person who was not a member of the Legislature of the 
State as a Minister and that Article 164(4) of the Constitution would only be 
applicable to a person who had been a Minister but who ceased to be a member 
of the Legislature for some reason such as the setting aside of his election in any 
election petition; and (iii) that the debates of the Constituent Assembly suggested 
that a person should be a member of the Legislature at the time of his being 
chosen as a Minister. 
Dismissing the petition, 
HELD : (I) By the Sixteenth Amendment clause (a) of Article 173 of the 
Constitution is amended by the addition of a clause which requires a candidate 
at an election to the Legislature to make and subscribe before some person 
authorised in that behalf by the Election Commission an oath or affirmation 
A 
B 
c 
D 
E 
F 
G 
H 
B 
c 
D 
E 
F 
G 
548 
SUPREME COURT REPORTS 
(1985] 2 S.C.R. 
according to the form set out for the purpose in the Third Schedule to the Cons-
titution. Earlier it was only after a person was elected or nominated as a member 
of the Legislature of a State that he was required by Article 188 of the Constitu-
tion to make and subscribe an oath or affirmation before taking his seat as such 
member in the form mentioned in the Third Schedule to the Constitution. The 
above requirement has to be co1nplied with by an elected or nominated member 
of the State Legislature even after the Sixteenth Amendn1ent. [550H; 551A; E;H] 
(2) The object of introducing the an1endment in clause (a) of Article 173 
of the Constitution was to provide that not only before taking his seat shall a 
member of the Legislature take the oath prescribed by the Third Sehedule as 
required by Article 188 of the Constitution but that even before standing for 
election, a candidate must take the same oath. This is to ensure that only a 
person having allegiance to India shall be eligible for membership of the Legis-
lature. [552C-D] 
(3) Article 177, ensures the implemcntatation of the constitutional princi-
ple contained in clause (2) of Article 164 of the Constitution which provides that 
the Councial of Ministers shall be collectively responsible to the Legislative 
Assembly of the State. A Minister in a State under our Constitution discharges 
that responsibility by virtue of the provisions contained in Article 177 of the Cons-
titution which enables him to participate in the proceedings of the Legislative 
Assembly even though he may not be its member with the right to vote. [553F; G] 
(4) It does not appear that the debates of the Constituent Assembly 
suggest that a person shall be a member of the Legislature at the time of his. 
being chosen as a Minister. An an1endment was proposed to that effect in the 
Constituent Assembly to the draft Constitution but was not accepted. 
[553H; 554A-Cl 
(5) The fear expressed by the petitioner that a person who does not owe 
his allegiance to the Constitution and is not wiiling to upho
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