Despite losing decisively in the by-election, Jharkhand Chief Minister Shibu Soren tried to cling on to power. This is the second time an incumbent CM has lost in a by-poll. In 1970, Uttar Pradesh Chief Minister Tribhuvan Narayan Singh lost a by-election. He had resigned immediately.
Article 164(4) of the Constitution reads: “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.” It means that any person can become minister in a state for a maximum period of six months even if he is not a member of the legislature. But if he is not elected to the House within that period, he will cease to be a minister after six months from the date of his appointment.
There is a similar provision for any person to become minister at the Centre without becoming an MP for six months under Article 75(5). The word used in these articles is ‘Minister’. But pertaining to the J. Jayalalithaa case, the Supreme Court ruled that it includes the posts of Chief Minister and Prime Minister also.
There is no such provision in Britain. But a minister there, according to practice, must either get elected to the House of Commons within a reasonable period or demit his office unless the Prime Minister deems it fit to recommend him for a peerage. Thus the qualification is instinct in practice, if not in law, although there are instances of ministers continuing without becoming members of either House.
In India, recourse has been taken to this provision right since the first general elections held in 1952. That very year, Morarji Desai lost in the general Assembly elections. But he was elected the leader of the Congress Legislature Party and was appointed the Chief Minister of Bombay. Then within six months’ time, he won a by-election from another constituency. The same year, in Madras, C. Rajagopalachari was sent to head the state government. He was then a former Governor-General and had not contested the Assembly election. One major reason why there was a feeling of alienation among Telugus in the then existing state of Madras was the denial of chief ministership to their leader T. Prakasam. Rajagopalachari could not muster courage to contest elections even as the CM as he apprehended that Kamraj Nadar would defeat him. He was not assured of his victory in the Legislative Council either. So, Rajagopalachari got elected to the Council on the single seat of the Madras Chambers of Commerce.
This provision has been grossly misused and some have become ministers for six months without being elected. In Punjab, Chief Minister Harcharan Singh Brar appointed Tej Prakash Singh as a minister on September 9, 1995, and he continued for the full six months up to March 8, 1996. As he could not be elected to the House within that period, he put in his papers. After some time Rajinder Kaur Bhattal succeeded Brar as the CM and Singh was again appointed a minister. This was challenged in the Supreme Court (S. R. Chaudhury vs Punjab).
Soren toyed with the idea of contesting again from Jamtada, but agreed to resign only after getting an unequivocal signal from the Congress to respect the mandate. Technically, he could contest from another constituency and get elected within six months. But it would have been stretching the provision too far. This provision is meant to be used for inducting people of proven competence and rectitude into the Council of Ministers. Not for holding on to power by hook or by crook.
Sudhanshu Ranjan is a senior TV journalist.