| Citation- | AIR 1997 SC 272 |
| Date of judgment | 6 nov,1996 |
| Case no | Civil writ petition no. 850. Of 1996 |
| Case type | writ petition |
| Petition/appellant | S.P Anand,indore |
| Defendant/respondent | H.D.Gowde & Others |
| Bench | CJT,Sujata .v. manohar |
| Court | Supreme court of India |
Facts of the case-
- Petition filed under article 32 of the Indian constitution which contended that shri H.D.Deva Gowda the prime minister who is not the member of the either house of parliament.
- Under the constitution he was not eligible to be appointment as the prime minister of India. It was a grave or serious error was committed by the president of India.
- Due the process article 14, 21, 75 of the constitution was violated by it and it is void ab intio and deserved to be quashed by the writ of this court that be issued in the power conferred by the article 32 of the constitution.
Issue-
- Can a person who is not a member of either house of legislature be sworn in as the prime minister of India.
ARGUMENTS
Petitioner
- The petitioner contends that the appointment of a non-member of the legislature as a minister was unconstitutional, which violated the fundamental principles of the Constitution of India.
- The petitioner argued that the appointment of H.D. Deve Gowda was void ab initio, and a writ of the court was sought to quash the decision.
- The petitioner argued the case with zeal, claiming to be concerned about the survival of the democratic process.
- The high office of the Prime Minister, on whom the responsibility of governing the nation during peace and war would rest.
Respondent
- The respondent referred to Article 74 and 75 of the Constitution, which deal with the Governor and the Chief Minister.
- They argued that Article 75(5) refers to a minister as the Prime Minister. The Constitution does not make any distinction between the Prime Minister and the other ministers.
Court
The Prime Minister’s accountability leads to their removal from the cabinet if they fail to adhere to instructions. Although the Prime Minister is not a member of Parliament, the House holds them accountable. It’s worth noting that the President appoints the Prime Minister after they are selected by a sufficient number of members in the House of the People, ensuring their confidence and ability to command support. Additionally, ministers are appointed based on the Prime Minister’s advice. The entire Council of Ministers is accountable to the House, as intended in the democratic process.
The averments in the petition lack cohesion and have a rambling nature. It’s regrettable that a petition challenging the appointment to the high office of the Prime Minister in this country was drafted in such a cavalier fashion, reflecting a lack of study, research, and seriousness. The petition is filled with casual and irrelevant averments, covering topics from freedom of speech to fraternity, judicial independence to judicial review, civil code to cow slaughter, and more.
The petitioner’s argument that electing a Prime Minister who is not a member of the House would endanger national interest or put the country at risk posed a challenge for the court to accept.
Similarly, under Article 164, clause 4, anyone who is not a member of the State Legislature may be nominated for a six-month term as Chief Minister of the State. This practice emerges as a result of long-recognized customs or agreements in areas where the law is silent. These conventions do not violate but rather complement the legal framework.
If the court’s reasoning is accurate, the Indian practice has been the complete opposite. In the past, individuals who were not elected to the legislature of their home state became Chief Ministers, and vice versa. Consequently, the petitioner’s reference to the British Convention is viewed as inconsistent with our constitutional system and has never been acknowledged as a practice in the United States of America by the court.Top of Form
Judgement
Subscribing to the petitioner’s argument that electing an individual who is not a member of the House as Prime Minister would jeopardize national interests or pose a serious threat to the constitution is challenging. Unlike the English tradition, our Constitution permits non-members to hold the position of Chief Minister or Prime Minister for a six-month term, irrespective of their house affiliation. This diverges from the English practice. In cases where the President has concerns, it is customary for them to recommend that the nominated individual seek a vote of confidence from the People’s House within a few days of their appointment.
The court’s decision to dismiss the petition was influenced by these reasons. An interim order was issued, instructing that ongoing proceedings in other jurisdictions be halted and dismissed, to be addressed in accordance with this ruling
Interpretation of laws
- A Minister who hasn’t continuously served in the State Legislature for six months loses their position when that term expires.
- Ministerial salary and allowances will adhere to the Second Schedule, unless otherwise determined by the State Legislature.
- This case was preceded by several others with similar circumstances. For instance, Shri T.N. Singh[i] faced opposition in Uttar Pradesh as he wasn’t a member of either parliamentary chamber. The court rejected the petition (filed under Article 226) by narrowly interpreting Articles 163 and 164. Article 164 Clause 4 has a history of interpretation, and it doesn’t need to be limited to situations where a legislator and Minister vacate their position in the State government. Similar questions arose in cases involving Shri KP. Tiwari[ii] and Shri SitaRam[iii], and the Hon’ble Court reached a similar conclusion by rigorously interpreting the provisions.
- Before the Supreme Court of India heard the Deve Gowda case, it had been argued in the high courts of Calcutta and Delhi. The petition was heard and rejected, as it was deemed unnecessary to differentiate the Prime Minister, who falls under the term “minister.” Articles 74 and 75 pertain to the President and the Prime Minister, while Articles 163 and 164 concern the Governor and the Chief Minister.
- Herein lies the first distinction between the two. Article 74 clause 1 and Article 163 clause 1 are nearly identical, except for the unique Governor’s function phrase beginning with “except”
Analysis/crtique of judgement
- When it comes to the appointment of a Minister, Article 75, Clause 5, clearly indicates the framers’ intention to allow non-members of Parliament to serve for a period of 6 months before losing their positions in both houses if they are not elected during that period. This perspective becomes evident when we examine the debates in the Constituent Assembly.
- To avoid “striking at the very heart of democracy,” an amendment was proposed, which stated: “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 proposed amendment was ultimately rejected by the Constituent Assembly after thorough discussions. Additionally, as highlighted in this Court’s judgment (Har Sharan Verma v. Union of India), such appointments do not conflict with the democratic ideals enshrined in our Constitution.
- In this case, the court referenced the aforementioned precedents and delivered its decision. The Supreme Court adopted a stringent interpretation of Article 75(5), clarifying that the term “minister” also includes the Prime Minister of our country. However, a potential issue arises: what if this opportunity is exploited? What if, after the initial six-month appointment period, the same minister is re-appointed as a minister or prime minister? Fortunately, this matter was addressed in SR Choudhari v. State of Punjab [v] (1995).
- In this case, the court ruled that re-appointing a minister after a six-month time frame is an undemocratic practice, as it does not align with the democratic values and ideals of a democracy. In a democratic system, a minister is expected to be appointed or elected by the people. Therefore, it is evident that there is a well-established precedent regarding this loophole, even though there is no specific precedent addressing the issue of whether a Prime Minister can be re-appointed if they are not a member of either house of parliament.
Reference
- https://indiankanoon.org
- https://www.casemine.com/
- https://www.legalservicesindia.com/
Written by Jhalak Varshney an intern under legal vidhiya.
