No constitutional or legal embargo in sitting MP's appointment as CM of a State : Advocate Hemant Kumar
There is also no need to resign as MP before contesting election for MLA of State Assembly
5 Dariya News
Chandigarh 14-Mar-2024
A sitting Member of Parliament (MP) can be appointed as Chief Minister(CM) of a State and there is no sort of constitutional or legal embargo (prohibition) in such appointment, asserted Hemant Kumar, an Advocate at Punjab & Haryana High Court.
This past Tuesday on 12 March, Nayab Singh Saini, sitting BJP MP from Kurukshetra Parliamentary Constituency (P.C.) got appointed as Chief Minister of Haryana replacing the erstwhile incumbent Manohar Lal Khattar.
Meanwhile, Saini's appointment as CM, Haryana has been challenged in Punjab and Haryana High Court in a Public Interest Litigation (PIL) on the ground that since he is a holder of the Office of Profit under the Government of India being the MP and simultaneously holding the post of CM of a State without being the member of legislative assembly of Haryana invites disqualification from the post of MP under the RP Act, 1951as well as under the provisions of Constitution of India.
However, Hemant says first of all there is no legal prohibition for a sitting MP being appointed as Chief Minister of a State since as per Constitution of India, the Office of Profit concept is only applicable in case of being chosen as and for being a member of either House of Parliament and/or of State Legislature.
It not all applies in case of the appointment of a sitting MP as the Chief Minister of a State. Furthermore, even the post of Chief Minister is not an Office of Profit as it has been excluded under Parliament (Prevention of Disqualification) Act, 1959.
Pertinent that as per Article 102 of Constitution of India, a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder.
Hence, even after being appointed as CM of a State, there is no question of being disqualification of a sitting MP. Hemant further told that since new Haryana CM Nayab Singh Saini is currently not a member of Haryana Vidhan Sabha, hence as a non-legislator he can continue as CM till six months only i.e. till 11 September 2024 as per Article 164(4) of Constitution of India.
Of course, he can become MLA of State Assembly if he contests & win a bye-election before ibid date. Since former CM Manohar Lal has resigned from Karnal Assembly Constituency (AC), hence Election Commission of India (ECI) can conduct a bypoll from such seat to give a chance to new CM Nayab Saini so as to become a member of Haryana Vidhan Sabha although legally, no bye-election is conducted if the remaining tenure of the erstwhile ( resigned) MLA is less than one year.
Since the current Haryana Assembly tenure is till 3 November 2024, hence former MLA & ex-CM Manohar Lal's remaining term as MLA from Karnal amounts to less than eight months. When asked if Haryana CM Nayab Saini would have to resign as MP before contesting bye-election, if it is conducted in coming months, Hemant says since post of MP is not a Office of Profit under the Government of India, hence there is no need for prior resignation as MP whilst contesting election for MLA.
Of course, after being elected as MLA, a sitting MP has to resign from either post of MP or MLA as simultaneous membership of Parliament & State Legislature is not permissible under Constitution of India.