S.P. Anand v. H.D.

Deve Gowda AIR 1997 SC 272

[A person who is not a member of either House of Parliament can be appointed as the Prime
Minister of India.]

Fact: 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 the President of India had committed 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 of Articles 14, 21 and 75 of the Constitution and,
therefore, void ab initio and deserved to be quashed by an appropriate writ, which may be issued
under Article 32 of the Constitution.

Issue Raised: whether a person who is not a member of either House of the State Legislature
could be appointed a Minister of State.

Judgment:

A.M. AHMADI, C.J.: In harsharan verma v. T.N. Singh it was held that , 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 petition filed 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.

Provision: 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.

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 vacate office.
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 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.

Art 173 talks about Qualification for membership of the state legislature.

The Court held that a person who was not a member of either House of the State Legislature
could also be appointed by the Governor 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 T.N. Singh case.

HISTORY AND PRECEDENTS

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, 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 can be 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.

In the Calcutta High Court , 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 a member 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 in limine.

JUDGMENT OF THE HC

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.

JOURNEY TO THE SC

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.

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:

74. Council of Ministers to aid and advise President - (1) There shall be a Council of
Ministers with the Prime Minister at the head to aid and advise the President who shall, in the
exercise of his functions, act in accordance with such advice.

(2) The question whether any, and if so what, advice was tendered by Ministers to the President
shall not be inquired into in any court.
163. Council of Ministers to aid and advise Governor - (1) There shall be a Council of
Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of
his functions, except insofar as he is by or under this Constitution required to exercise his
functions or any of them in his discretion.

(2) The question whether any, and if so what, advice was tendered by Ministers to the Governor
shall not be inquired into in any court.

75. Other provisions as to Ministers - (1) The Prime Minister shall be appointed by the
President and the other Ministers shall be appointed by the President on the advice of the Prime
Minister.

(2) The Ministers shall hold office during the pleasure of the President.

(3) The Council of Ministers shall be collectively responsible to the House of the people.

(4) Before a Minister enters upon his office, the President shall administer to him the oaths of
office and of secrecy according to the forms set out for the purpose in the Third Schedule.

(5) 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.

164. Other provisions as to Ministers - (1) The Chief Minister shall be appointed by the
Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief
Minister, and the Ministers shall hold office during the pleasure of the Governor.

(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the
State.

(3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of
office and of secrecy according to the forms set out for the purpose in the Third Schedule.

(4) 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.
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.

ANALYSIS: 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 to be 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.

PETITIONOR CONTENTION: 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.

COURT’S ARGUMENT: 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.
PREVIOUS KNOWLEDGE: 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 reconsider such 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.

In other 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.

The Prime Minister 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 of
the Prime Minister, the entire Council of Ministers is made collectively responsible to the House
and that ensures the smooth functioning of the democratic machinery.

FINAL JUDGMENT : 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 clearly permits 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.

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