S.P. Anand v. H.D. Deve Gowda (1996) 6 SCC 734 

Case Summary

Full Case Details

[A person who is not a member of either House of Parliament can be
appointed as the Prime Minister of India.]
Shri H.D. Deve Gowda, not being a member of either House of Parliament, was appointed
as the Prime Minister of India. The petitioner contended that he was not eligible to be
appointed as the Prime Minister of India, and that the President of India hadcommitted a
grave and serious Constitutional error in swearing him in as the Prime Minister. This action
of the President, according to the petitioner, was violative ofArticles 14, 21 and 75 of the
Constitution and, therefore, void ab initio and deserved tobe quashed by an appropriate
writ, which may be issued under Article 32 of the Constitution.
A.M. AHMADI, C.J.: 2. A Constitution Bench of this Court had occasion to consider
whether a person who is not a member of either House of the State Legislature could be
appointed a Minister of State and this question was answered in the affirmative on a true
interpretation of Articles 163 and 164 of the Constitution which, in material particulars,
correspond to Articles 74 and 75 bearing on the question of appointment of the PrimeMinister.
In that case, Shri T.N. Singh was appointed the Chief Minister of Uttar Pradesh even though
he was not a member of either House of the State Legislature on the date of his appointment.
His appointment was challenged in the High Court by way of a writ petitionfiled under
Article 226 of the Constitution. The High Court dismissed the writ petition but granted a
certificate under Article 132 of the Constitution. That is how the matter reached this Court.

3. Now, Article 164(4) provides that 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 was, however, urged that on the plain language of the said provision,it is
   obvious that it speaks of appointment of a Minister who is a member of the State Legislature
   but who loses his seat at a later date in which case he can continue as a Minister for a period of
   six months during which he must be re-elected or otherwise, must vacateoffice. Interpreting
   the said clause in the context of Article 163 and other clauses of Article 164, this Court held
   that clause 4 of Article 164 had an ancient lineage and there was no reason to whittle down the
   plain thrust of the said provision by confining it to cases where a person being a member of the
   legislature and a Minister, for some reason, loses his seat in the State. Accordingly, the decision
   of the High Court was affirmed. [See Har Sharan Verma v. Tribhuvan Narain Singh, Chief
   Minister, U.P. and Another, (1971) 1 SCC 616].
4. The same petitioner again raised the issue when Shri K.P. Tiwari was appointed in
   November 1984 as a Minister of the U.P. Government even though he was not a member of
   either House of the State Legislature. He contended that the decision rendered by this Court in

the case of Shri T.N. Singh was not good law since the Court had overlooked the amendment
of Article 173(a) effected by the Constitution (Sixteenth) Amendment Act, 1963. [The
corresponding provision in regard to Parliament is Article 84(a).] Dealing with this contention
this Court pointed out that the object of introducing the amendment in clause (a) of Article
173 of the Constitution was to provide that not only before taking his seat shall a member of
legislature take the oath prescribed by the Third Schedule as required by Article 188 of the
Constitution but that even before standing for election a candidate must take the same oath.
This wasto ensure that only a person having allegiance to India shall be eligible for membership
of the legislature. The Court further pointed out that clause (4) of Article 164 of the Constitution
provides that a Minister (which includes a Chief Minister also) who, for any period of six
consecutive months, is not a member of the legislature of a State shall, at the expiration of that
period cease to be a Minister. In other words, the Court held that a person who was not a member
of either House of the State Legislature could also be appointed by theGovernor as the Minister
(which includes the Chief Minister) for a period not exceeding six consecutive months. The
Court, therefore, did not see any material change brought about in the legal position by reason
of the amendment of Article 173(a) of the Constitution from that as explained in the earlier
decision in Shri T.N. Singh’s case. This decision is reported as HarSharan Verma v. State of
U.P. [(1985) 2 SCC 48].

5. Not content with these two decisions rendered by this Court, the very same petitioner
   once again questioned the appointment of Shri Sita Ram Kesri as a Minister of State of the
   Central Cabinet since he was not a member of either House of Parliament at the date of the
   appointment. Spurning the challenge, this Court held that to appoint a non-member of
   Parliament as a Minister did not militate against the constitutional mechanism nor did it militate
   against the democratic principles embodied in the Constitution. The Court, therefore, upheld
   the appointment under Article 75(5) of the Constitution read with Article 88 thereof, which
   article, inter alia, conferred on every Minister the right to speak in, and otherwise to take part
   in the proceedings of, either House, in joint sitting of the Houses, and in a Committee of
   Parliament of which he may be named a member, though not entitled to vote. The Court,
   therefore, on a combined reading of the aforesaid two provisions held that a person not being
   a member of either House of Parliament can be appointed a Minister up to a period of six
   months. This case came to be reported as Harsharan Verma v. Union of India and Another,
   [1987 Supp. SCC 310].
6. We may now refer to two decisions rendered by the High Courts of Delhi and Calcutta
   in which the appointment of the present Prime Minister Shri H.D. Deve Gowda was challenged
   on more or less the same ground. One Dr Janak Raj Jai filed a Writ Petition No. 2408 of 1996
   in which he questioned the appointment since the present Prime Minister was not a member of
   either House of Parliament on the date he was sworn in by the President of India as the Prime
   Minister of India. He contended that while under Article 75(5) a person canbe appointed a
   Minister, he cannot be and should not be appointed a Prime Minister. Dealing with this
   submission the High Court, after referring to Articles 74 and 75 of the Constitution, held that
   “when Article 75(5) speaks of a ‘Minister’ it takes within its embrace that Minister also who is
   described in the Constitution as Prime Minister”. In other words that High Court

found that the Constitution did not make any distinction between the Prime Minister and other
Ministers. The High Court dismissed the petition.

7. In the Calcutta High Court C.O No. 1336(w) of 1996 was filed by one Ashok Sen Gupta,
   a Senior Advocate, challenging the appointment of Shri H.D. Deve Gowda as the Prime
   Minister of India on the ground that he was not eligible for appointment as he was not amember
   of either House of Parliament. The learned Single Judge of the High Court in a well- considered
   judgment held that Article 75(5) of the Constitution permits the President of India to appoint a
   person who is not a member of either House of Parliament as a Minister,including a Prime
   Minister subject to the possibility of his commanding the support of the majority of members
   of the Lok Sabha. On this line of reasoning the petition was dismissed inlimine.
8. From the aforesaid three decisions of this Court and the High Courts it becomes clear
   that a person who is not a member of either House of Parliament or of either House of a State
   Legislature can be appointed a Minister in the Central Cabinet (which would include a Prime
   Minister) or a Minister in the State Cabinet (which would include a Chief Minister), as the case
   may be. But the petitioner herein remains not satisfied.
9. The petitioner who argued the case in person with great passion, zeal and emotion,
   claiming to be concerned about the survival of the democratic process and the pristine glory
   of our constitutional scheme, submitted that if a person who is not the elected representative
   of the people of the country and in whom the people have not placed confidence, is allowed to
   occupy the high office of the Prime Minister on whom would rest the responsibility of
   governing the nation during peace and war (God forbid), it would be taking a great risk which
   the country can ill afford to take and, therefore, we should so construe the relevant provisions
   of the Constitution as would relieve the country of such a risk. When his attention was drawn
   to the case law aforementioned he stated that those decisions were old and needed to be
   reconsidered in the changed circumstances. He submitted his submissions in writing which
   are by and large a repetition of the averments in the petition.
   
   11. In order to appreciate the contention raised in this petition, and to determine if the
   aforesaid decision on which the learned Attorney General relied has any bearing on the point
   at issue in the present petition, it would be advantageous to read Articles 74 and 75 in
   juxtaposition with Articles 163 and 164 of the Constitution:

12. When we compare Articles 74 and 75 with Articles 163 and 164, the first point of
    difference is that while the former deal with the President and the Prime Minister, the latter deal
    with the Governor and the Chief Minister. Article 74(1) and Article 163(1) are substantially the
    same except that the sentence beginning with ‘except’ and ending with ‘discretion’, special to
    the Governor’s function, is not to be found in Article 74(1). Theproviso to Article 74(1) which
    grants a special privilege to the President is not to be found in Article 163(1) whereas clause
    (2) of Article 163 is not to be found in Article 74. Clause (2) to Article 163 is a corollary to the
    exception clause in Article 163(1) and has no relevance to the issue on hand. Article 74(2) and
    Article 163(3) are verbatim.
13. Articles 75(1) and 75(2) are identical to Article 164(1) except that in the case of the
    latter, the two clauses have been combined into one. The proviso to Article 164(1) which is

special to States, is not to be found in Article 75. The rest of the clauses of the two articles are
identical except for consequential changes.

14. On a plain reading of Article 75(5) it is obvious that the Constitution-makers desired to
    permit a person who was not a member of either House of Parliament to be appointed a Minister
    for a period of six consecutive months and if during the said period he was not elected to either
    House of Parliament, he would cease to be a Minister. This becomes clear if one were to read
    the debates of the Constituent Assembly (the draft Articles were 62 and 144 for the present
    Articles 75 and 164). Precisely on the ground that permitting such persons tobe appointed
    Ministers at the Union or State levels would “cut at the very root of democracy”,an amendment
    was moved to provide: “No person should be appointed a Minister unless at the time of his
    appointment, he is elected member of the House:” which amendment was spurned by Dr
    Ambedkar.
15. The petitioner then invited our attention to Halsbury’s Laws of England (3rd Edn.) p
    347 wherein at para 745 it is stated: “By conventional usage the Prime Minister is invariably a
    member of either House of Commons or House of Lords”; footnote (i) proceeds to add that
    the person selected is preferably to be a member of the House of Commons. The petitioner
    further urged that even if the Constitution is construed to permit a person who is not a
    member of either House of Parliament to be appointed a Minister for six months, there is
    nothing in Article 75(5) to suggest that he can be appointed the Prime Minister of the country.
    He urged that the status of the Prime Minister is distinct from that of a Minister and, therefore,
    it is essential that a person who occupies the high position of a Prime Minister should be an
    elected representative of the people. This submission overlooks the fact that the person who is
    appointed the Prime Minister is chosen by the elected representatives of the people and can
    occupy the position only if he enjoys the confidence of the majority of the elected
    representatives in the Lok Sabha. Secondly, we must bear in mind the scheme of our
    Constitution and if our Constitution permits such appointment, that should put an end to the
    controversy.
16. Now Article 75(1) envisages a Council of Ministers with the Prime Minister at the head
    to aid and advise the President, and the latter is expected to act in accordance with such advice
    but if he has any reservations he may require the Council of Ministers to reconsidersuch advice.
    Thus, the President has to act in accordance with the advice of the Council of Ministers as a
    body and not go by the advice of any single individual. Only a person who, the President thinks,
    commands the confidence of the Lok Sabha would be appointed the Prime Minister who in turn
    would choose the other Ministers. The Council of Ministers is made collectively responsible to
    the House of the People. The form of the oath prescribed in the Third Schedule under Article
    75(4) is the same for the Prime Minister as well as a Minister. Inother words, the Constitution
    does not draw any distinction between the Prime Minister and any other Minister in this behalf.
    This is not to say that the Prime Minister does not enjoy a special status; he does as the head of
    the Council of Ministers but the responsibility of the Council of Ministers to the House of the
    People is collective. Besides, the caption of Article75 as a whole is “Other provisions as to
    Ministers”. No separate provision is to be found dealing with the appointment of the Prime
    Minister as such. Therefore, even though the PrimeMinister is appointed by the President after
    he is chosen by such number of members of the

House of the People as would ensure that he has the confidence of the House and would be able
to command the support of the majority, and the Ministers are appointed on the advice ofthe
Prime Minister, the entire Council of Ministers is made collectively responsible to the House
and that ensures the smooth functioning of the democratic machinery. If any Minister does not
agree with the majority decision of the Council of Ministers, his option is to resignor accept
the majority decision. If he does not, the Prime Minister would drop him from his Cabinet and
thus ensure collective responsibility. Therefore, even though a Prime Minister is not a member
of either House of Parliament, once he is appointed he becomes answerable to the House and
so also his Ministers and the principle of collective responsibility governs the democratic
process. Even if a person is not a member of the House, if he has the support and confidence of
the House, he can be chosen to head the Council of Ministers without violating the norms of
democracy and the requirement of being accountable to the House would ensure the smooth
functioning of the democratic process. We, therefore, find it difficult to subscribe to the
petitioner’s contention that if a person who is not a member of the House is chosen as Prime
Minister, national interest would be jeopardised or that we would be running a great risk. The
English convention that the Prime Minister should be a member of either House, preferably
House of Commons, is not our constitutional scheme since our Constitution clearlypermits a
non-member to be appointed a Chief Minister or a Prime Minister for a short duration of six
months. That is why in such cases when there is any doubt in the mind of the President, he
normally asks the person appointed to seek a vote of confidence of the House of the People
within a few days of his appointment. By parity of reasoning if a person who is nota member
of the State Legislature can be appointed a Chief Minister of a State under Article 164(4) for
six months, a person who is not a member of either House of Parliament can be appointed Prime
Minister for the same duration. We must also bear in mind the fact that conventions grow from
long standing accepted practices or by agreement in areas where the law is silent and such a
convention would not breach the law but fill the gap. If we go by that principle, the practice in
India has been just the opposite. In the past, persons who were not elected to State Legislatures
have become Chief Ministers and those not elected to either House of Parliament have been
appointed Prime Ministers. We are, therefore, of the view thatthe British convention to which
the petitioner has referred is neither in tune with our constitutional scheme nor has it been a
recognised practice in our country.

19. With these observations we dismiss the petition. The interim order staying proceedings
    pending elsewhere shall stand vacated with a direction that they shall be disposedof in the light
    hereof.