HAR SHARAN VARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner Sri Har Saran Varma challenges the induction of Sri Mufti Mohammad Saeed into the Central Cabinet. The ground of challenge is that he is not a member of either House of Parliament and is, therefore, disqualified for becoming a member of the Council of Ministers. In support of his plea he has placed reliance upon Arts.84, 99 and 104 of the Constitution and S.36 of the Representation of the People Act.

(2.) The answer to the petitioner's contention is to be found in Arts.74 and 75 of the Constitution. Article 74(1) provides that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President. This article does not prescribe any qualification for becoming a member of the Council off Ministers. It does not prescribe that a member of the Council of Ministers must be a member of one of the Houses of Parliament. Thus, there is no bar to a person who is not a member of one of the Houses of Parliament becoming a member of the Council of Ministers. This is the position so far as induction into the Council of Ministers is Concerned.

(3.) Then comes Art.75(5) which says that a Minister who for any period of six consecutive months is not a member of either House of Parliament, shall at the expiration of that period cease to be a Minister. In view of this provision a Minister who fails to acquire membership of either House of Parliament for six months from the date of his induction into the Council of Ministers ceases to be a Minister on the expiry of the said period of six months. But the disqualification comes only after the expiry of the period of six months mentioned herein. In Para 5 of the petition, the petitioner has stated that Sri Mufti Mohammad Saeed was appointed a Minister on 12-5-1986. From this date the period of six months has not expired. Accordingly, it cannot be said that Sri Saeed is holding the office of Minister illegally. Therefore, writ of quo warranto prayed for cannot be issued.