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Citation	AIR 1997 SC 272
Date of Judgement	6 November 1996
Court	Supreme Court of India
Appellant	S.P. Anand, Indore
Respondent	H.D. Deve Gowda & Others
Bench	CJT, Sujata V. Manohar
Referred	Article 32

Table of Contents

FACTS OF THE CASE –

H.D. Deve Gowda was chosen as India’s prime minister despite not belonging to either House of Parliament. The petitioner argued that the President of India made a significant and catastrophic constitutional error by swearing him in as Prime Minister since he was ineligible to serve as India’s Prime Minister. According to the petitioner, the President’s action violated Article 14, Article 21, and Article 75 of the Constitution, making it void from the start and deserving of being overturned by a suitable summons, that could have been imposed according to Article 32 of the Constitution.

According to the petitioner, the respondents unlawfully detained him and infringed upon his right to personal liberty. The petitioner further claimed that while in custody, he had been tortured physically and mentally. The petitioner asked the court to give suitable instructions to stop similar infractions in the future in addition to seeking damages for the infringement of his most fundamental liberties.

ISSUES –

Can a person who is not an elected official of both houses of Parliament get sworn in as the prime minister of India?
Whether a candidate for Minister of State may be selected if they were not an elected member of either of the houses of the State Legislature?

ARGUMENTS –

Petitioner –

The petitioner argued that allowing someone who has not been elected to represent the country’s citizens and in whom they lack assurance to be in in charge of governing the country both in peace and war would pose a serious threat to the nation, and that we ought to accordingly interpret the relevant Constitutional provisions in this way. The petitioner declared that all previous decisions and precedents pertaining to this subject were out of date and required to be reassessed in conjunction with the new facts as soon as he learned concerning the preceding case law. He sent written comments, the vast majority of which repeat the claims made in the petition.

The petitioner adds that it is preferable that the person chosen to be a member of the House of Commons, citing Halsbury’s English Law, which states that “By conventional procedure a prime minister is always either a member of the House of Common or House of Lord.” The petitioner stated that even while Article 75(5) of the Constitution allows a non-MP to be named the minister for a term of five months, this person cannot be chosen to serve as prime minister. The petitioner claimed that even if Article 75(5) of the Constitution permits an individual who is not a member of Parliament to be nominated a Minister for a period of five months, it does not permit that person to be chosen Prime Minister.

A democratically elected politician is required to hold the office of Prime Minister because it is distinct from that of a Minister. The Prime Minister will be selected by the representatives who were elected of the people, as indicated in this submission, and he or she can only hold the job if a majority of those who voted for the members of the Lok Sabha have faith in him or her. The court should first look at the general structure of our Constitution; if it permits such a recommendation, the discussion should be put to rest.

COURT –

The petition’s asseveration, according to the court, is disjointed and lacks cohesion. Unfortunately, the haste with which an anti-prime ministerial petition was created shows a lack of knowledge and regard for the needs of the nation. One can find irrelevant and unsupported claims about everything

from the independence of the judiciary and judicial review to judicial independence and fraternity throughout the petition.

To be courteous to the complainant, the court must acknowledge that he requested permission to discuss examples related to these subjects but was denied because the court felt it would be an utter waste of time for the public. The petitioner was therefore instructed by the court to confine his arguments to the crucial issue of whether a non-MP can be named Prime Minister. Even on this point, the petitioner’s arguments were only pretentious jargon.

The President must, however, follow such advice, and if he has any doubts, he may request that the Council of Ministers review it, as is now allowed under Article 75(1) of the Indian Constitution. The President is obligated to take these proposals into consideration unless there are strong reasons to the contrary. The President is not permitted to heed the advice of any one individual because he is required to adopt the council’s recommendations.

The President of India must trust someone before he or she will choose additional Ministers on that person’s behalf as Prime Minister. The Constitution holds the Parliament of People and the Council of Ministers jointly accountable. The Prime Minister and each Minister take the same oath of office, as stated in Article 75(4) of the Third Schedule. That is, the Prime Minister and all other Ministers are treated equally under the Constitution.

While it is true that the Prime Minister is appointed by the President after being chosen by an adequate amount of individuals in the Parliament of People to ensure that he has their confidence and will be able to command their support, and that Ministers are appointed on his advice, the entire Council of Cabinet Ministers is held jointly accountable to the House, ensuring that the democratic machinery functions as intended. A Minister has two choices if he objects with the Panel of Ministers’ decision: he either resigns or goes along with the majority’s ruling.

If he doesn’t follow directions, the Prime Minister will dismiss him from his cabinet to ensure collective accountability. Although the Prime Minister is not a member of Parliament, the House holds him and his Ministers responsible as soon as they are appointed. Regardless of who is in power, this idea of communal accountability governs democratic processes. A person need not be

a member of the House to be chosen to lead the Council of Ministers if they have the backing and confidence of the House and uphold democratic ideals and the need to answer the House.

The petitioner’s claim that electing a Prime Minister who is not a member of the House would jeopardize national interest or put the nation in peril was difficult for the court to accept. The Prime Minister must, for a brief amount of time (six months), be an elected member of one of Parliament’s houses, ideally the House of Commons. Our constitutional system is not like this. As a result, when the President has any questions, he often asks the chosen individual to ask for a vote of confidence from Parliament within a few days of being appointed to get answers.

In a similar vein, anyone who is not a member of the State Legislature may be nominated for a six- month tenure as the state’s Chief minister under Article 164 clause 4. Conventions that fill the legal void rather than breaking it may develop because of long-standing accepted practice or agreement in areas where the law is silent. If the court’s justification is sound, Indian practice has always been the complete opposite. People who weren’t elected to their home state’s legislature have in the past gone on to become chief ministers, and vice versa. The petitioner’s reference to the British Convention, in the court’s opinion, is therefore inconsistent with our constitutional structure and has never been recognized. For this reason, the court considers the petitioner’s reference to the British Convention to be inconsistent with our constitutional framework and to be a custom that has never been recognized in the United States of America.

LAW INTERPRETATION –

When that term ends, a Minister who has not participated in the State Legislature for six consecutive months loses their job. Until the State Legislature decides otherwise for Ministers, the Second Schedule’s allowances and salary provisions apply to ministers.

There were several cases before this one in which a comparable circumstance occurred. One such individual was Shri T.N. Singh. Considering that he was not a member of either chamber of parliament, people in Uttar Pradesh opposed his nomination. The court denied the petition (filed under Article 226) by applying a very constrained interpretation of Articles 163 and 164.

The Deve Gowda case had been litigated in the high courts of Delhi and Calcutta before it was heard by the Supreme Court of India. The petition was heard, but it was dismissed because it didn’t need to name the prime minister because he is covered by the phrase “minister”. “While Articles 163 and 164 deal with the Governor and the Chief Minister, Articles 74 and 75 deal with the President and the Prime Minister.

The first difference between the two is this. With the exception of the unique Governor’s function phrase beginning with “except” and ending with “discretion,” Articles 74 and 163’s first clauses are nearly similar. Article 163(1) does not contain clause (2) of Article 163, and Article 74 does not have the proviso to Article 74(1), which grants the President a special discretion. This provision is a consequence of the exclusion clause of Article 163(1) and has no application to the subject at hand. Article 74’s paragraph 2 and Article 163’s paragraph 3 are identical.

Except for the fact that Article 164(1) combines two sentences into one, Articles 75(1) and (2) and 164(1) are identical. The State-specific proviso to Article 164 clause 1 is not included in Article

75. The remaining clauses in the two Articles are the same, with the exception of the resulting alterations.

JUDGEMENT –

It is challenging to accept the petitioner’s claim that choosing a Prime Minister who is not a House member will seriously jeopardize 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 it is done in English. 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 prohibiting the dismissal of procedures already in progress in other jurisdictions was issued, with the direction that they be handled in light of this decision.

CRITIQUE –

“No person may be appointed a Minister unless at the time of his appointment, he has been elected a member of the House.” At the conclusion of the deliberations, the Constituent Assembly rejected the suggested modification. Additionally, as established in this Court’s decision in Har Sharan

Verma v. Union of India, such a nomination does not clash with the democratic principles outlined in our Constitution.

The court made a judgement in this case after citing the aforementioned precedents. The Supreme Court has interpreted Article 75(5) in a very strict manner. The Prime Minister of our nation is also referred to as a minister. But there’s a problem with this: what if this chance is taken advantage of? What happens if the same minister is reappointed as prime minister or minister after the initial six-month appointment period? Thankfully, SR Choudhari v. State of Punjab (1995) addressed this issue.

Re-appointing a minister after a six-month period was deemed to be an undemocratic practise in this case by the court since it does not adhere to the ideals of democracy. The minister must be chosen or chosen by the people in a democracy. As a result, although there isn’t a precedent expressly addressing the question of whether a prime minister can be chosen again if he isn’t a member of either house of parliament, we can see that there is a well-established precedence on this loophole.