Day after Supreme Court rap, Bihar BJP MLC vacates seat for RLM Minister Deepak Prakash

The BJP’s move came amid mounting legal scrutiny and political pressure over the continuance of Prakash as a minister in the Samrat Choudhary government despite remaining unelected to either House.

On Thursday, a three-judge apex court Bench headed by Chief Justice of India Surya Kant, hearing a plea challenging Prakash’s reappointment as a minister without being elected a legislator, asked the Bihar government’s counsel: “It is a pure legal issue. How are you retaining a minister beyond six months when he is not elected?”

The court also made it clear that no further time would be granted to the state to respond, fixing the next hearing for August 4.

Article 164(4) allows a person who is not a member of the legislature to serve as a minister for six months, subject to being elected to either House within that period.

Prakash’s twin stints

Prakash, 36, son of RLM president Upendra Kushwaha, was first inducted as the Panchayati Raj Minister by the then chief minister Nitish Kumar on November 20, 2025.

Following Nitish’s resignation, Samrat took charge as the CM on April 15, 2026, inducting Prakash as the Panchayati Raj Minister on May 7, thereby leaving a gap of 22 days during which the latter was not a minister.

The challenge in Prakash’s case also stems from his cumulative non-elected tenure across two different state cabinets within the same legislative term exceeding the six-month constitutional limit: four months and 26 days during the Nitish Kumar tenure and 2 months and 24 days in the Samrat Choudhary

ministry as of July 31.

The NDA government has tried to claim that in neither stint, Prakash has crossed six months’ deadline. Responding to such questions during one of his press conferences in June, Samrat had said, “He (Prakash) can remain a minister till five months and 29 days,” while remaining silent about his double stints.

Plea before SC

However, the petitioner before the apex court has argued that Article 164(4) provides only a one-time constitutional window and that Prakash ought to have secured election to the legislature between November 20, 2025, and May 20.

The petitioner has argued that Prakash must resign now as he had cumulatively completed the maximum grace period of six months to continue as the minister without being member of either House.

The plea has contended that his reappointment amounts to a circumvention of constitutional safeguards, seeking a declaration that his continuation in office is unconstitutional and illegal.

Legal experts have also highlighted some judicial precedents. In S R Chaudhuri v. State of Punjab (2001), a three-judge SC Bench ruled that the six-month grace period is a “one-time privilege” for an individual during the term of an Assembly. The court said: “The change of a Chief Minister, during the term of the same Assembly, would be of no consequence so far as the individual is concerned.”

The Bench had also noted that allowing an unelected minister to resign right before six months and be reappointed shortly after would allow non-legislators to hold office indefinitely, thereby subverting parliamentary democracy.

BJP’s dilemma

Against this backdrop, the BJP’s decision to get its MLC Devesh Kumar to resign is clearly aimed at accommodating its ally in the Samrat ministry by ensuring Prakash’s election in his place.

Prakash’s father Upendra Kushwaha is a prominent NDA leader, who belongs to the OBC Kushwaha community which forms a sizeable chunk of voters in Bihar.

Devesh Kumar had been nominated to the Legislative Council under the Governor’s quota on March 17, 2021, by the then Governor Fagu Chauhan. His six-year term was due to expire in March 2027.

The arrangement in Prakash’s case echoes the NDA’s move in 2021, when the Governor’s quota was used to ensure the continuation of ministers Ashok Choudhary (JDU) and Janak Ram (BJP) by paving the way for their entry into the Legislative Council.

The fresh development assumes additional political significance as Prakash was denied an MLC berth only last month. In the June 11 biennial elections to the Legislative Council, the NDA did not nominate the RLM leader despite his ministerial position, leaving him without a route into the legislature.

In the MLC elections, all 10 candidates were elected unopposed, of which the NDA bagged nine seats with the BJP and JD(U) securing four each and the LJP (Ram Vilas) winning one. The principal Opposition RJD won the remaining seat.

The MLC polls were also significant as it marked the electoral debut of Nitish’s son Nishant Kumar, who has been inducted in the Samrat Cabinet as the Health Minister.