S.P. Anand v. H.D. Deve Gowda

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Citation	AIR 1997 SC 272
Date of Judgement	6th November 1996
Court	Supreme Court
Subject	Constitution and Elections
Appellant/Petitioner/Plaintiff	S.P. Anand
Respondents/Defendant	H.D. Gowda, Union of India, Dr. Shankar Dayal Sharma, Speaker of Lok Sabha, Leader of the Muslim League in Lok Sabha
Bench	Hon’ble Justice Sujata V. Manohar (CJT), Hon’ble Justice A.M. Ahmadi
Sections Referred	Constitution Of India – Article 132, Article 14, Article 144, Article 163, Article 163(1), Article 163(3), Article 164, Article 164(1), Article 164(4), Article 173, Article 173(a), Article 188, Article 21, Article 226, Article 32, Article 62, Article 74, Article 74(1), Article 74(2), Article 75, Article 75(1), Article 75(4), Article 75(5), Article 84(a), Article 88
Cases Referred	Har Sharan Verma vs. Shri Tribhuvan Narain Singh, Chief Minister, U.P. and Anr. MANU/SC/0041/1971; Har Sharan Verma vs. State of U.P. and Anr. MANU/SC/0031/1985; Mithilesh Kumar Sinha and Kaka Joginder Singh alias Dharati Pakad vs. Returning Officer for Presidential Election and others and Dr. Shankar Dayal Sharma and others MANU/SC/0002/1993; Harsharan Verma vs. Union of India (UOI) and Anr (MANU/SC/0112/1987

FACTS:

The petition was brought under Article 32 of the Constitution. The petitioner claims that the then President of India, Dr. Shanker Dayal Sharma, the third respondent, made a grave and constitutional severe error when he swore in Shri H.D. Deve Gowda as Prime Minister because he was not a member of either House of Parliament and was therefore ineligible to be appointed as such under the Constitution.

According to the petitioner, the third respondent’s action violates Articles 14, 21, and 75 of the Constitution and is therefore null and void from the beginning. This action, the petitioner claims, merits being overturned by an appropriate writ issued by this Court in accordance with the authority granted by Article 32 of the Constitution.

In addition, the petitioner had named the Union of India, the Speaker of the Lok Sabha, and the Leader of the Muslim League in the Lok Sabha respondents 2, 4, and 5 in that order.

On the basis of a correct interpretation of Articles 163 and 164 of the Constitution, which in important respects correspond to Articles 74 and 75 regarding the appointment of the Prime Minister, a Constitution Bench of this Court had the 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. This question was answered in the affirmative.

The appointment of the current Prime Minister Shri H.D. Deve Gowda was contested in two rulings made by the High Courts of Delhi and Calcutta on grounds that were essentially the same. Since the then Prime Minister was not a member of either House of Parliament on the date he was sworn in by the President of India as Prime Minister of India, one Dr. Janak Raj Jai filed a writ suit No. 2408 of 1996 in which he questioned the appointment.

ISSUES:

Can someone who is not a member of either House of Parliament be sworn in as Prime Minister of India?

CONTENTIONS:

From Petitioner

The petitioner claims that the appointment of a minister who is not a member of the legislature was illegal and in violation of the fundamental tenets of the Indian Constitution.
A writ of court was requested to overturn the verdict because the petitioner claimed that the appointment of H.D. Deve Gowda was invalid from the start.
The petitioner passionately supported his or her position, saying that he or she was worried about the future of the democratic system.
The prestigious position of prime minister, who would be in charge of leading the country in both peace and war.

From Respondent:

The reply cited the Constitution’s Articles 74 and 75, which speak to the Governor and Chief Minister, respectively.
They maintained that a minister is referred to as the Prime Minister under Article 75(5). The Prime Minister and the other ministers are treated equally under the Constitution.

ANALYSIS OF THE CONSTITUTION BY THE COURT:

According to Article 164(4), a Minister who is not a member of the State Legislature for a stretch of six consecutive months should resign as Minister at the end of such stretch. However, it was argued that based on the clear language of the aforementioned provision, it is clear that it refers to the appointment of a Minister who is currently a member of the State Legislature but loses his seat at a later time. In this case, he can continue in his role as a Minister for a period of six months before he must be re-elected or else resign from his position.

By interpreting the aforementioned clause in the context of Article 163 and other clauses of Article 164, this Court determined that Clause 4 of Article 164 had a long history and that there was no reason to limit its application to situations in which a person who is a member of the Legislature and a Minister loses his position in the State. As a result, the High Court’s judgement was upheld.

JUDGEMENT:

It is challenging to accept the petitioner’s claim that choosing a prime minister who is not a House member will seriously jeopardise the national interest or the constitution. Contrary to English practice, our Constitution permits non-members to hold the office of Chief Minister or Prime Minister for a length of six months, regardless of which house they are a member of. This is not how the English do it. When the President has any reservations, he will normally suggest that the nominee ask the People’s House for a vote of confidence within a few days after their appointment.

The court dismissed the petition as a result of these factors. A temporary injunction against the dismissal of procedures already in progress in other jurisdictions was issued, with the direction that they be handled in light of this decision.

CRITICAL ANALYSIS:

Article 75, Clause 5, clearly states the framers’ desire to let non-members of Parliament to serve for a period of six months before losing their posts in both chambers if they are not elected during that time when it comes to the selection of a Minister. When we look at the Constituent Assembly discussions, this viewpoint is clear.
A proposed modification read: “No person may be appointed as a Minister unless, at the time of their appointment, they are elected as a member of the House.” This was done to prevent “striking at the very heart of democracy.” After careful deliberation, the Constituent Assembly decided to reject this suggested modification. Such appointments do not contradict with the democratic values contained in our Constitution, as was also noted in this Court’s ruling (Har Sharan Verma v. Union of India).
The court made its ruling in this instance while citing the aforementioned precedents. The Prime Minister of our nation is included in the definition of “minister” under the strict reading of Article 75(5) that the Supreme Court established. A significant problem, though, is raised by the possibility that this chance may be abused. What if the same minister is re-appointed as a minister or prime minister beyond the original six-month appointment period? Thankfully, SR Choudhari v. State of Punjab [v] (1995) addressed this issue.
Reappointing a minister after six months is, according to the court’s ruling in this instance, an undemocratic practices because it is at odds with democratic goals and values. A minister should be chosen or elected by the people in a democratic government. Even while there is no particular case addressing the question of whether a Prime Minister can be re-appointed if they are not a member of either house of parliament, it is clear that there is a well-established precedence on this gap.

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