Indore Vs. H.D. Deve Gowda & Ors
 INSC 1407 (6
Sujata V. Manohar Ahmadi, Cji.
person who is not a member of either House of Parliament be sworn in as the
Prime Minister of India? That is the main question of public importance that
the petitioner has raised in this petition brought Under Article 32 of the
Constitution. According to the petitioner, the first respondent, Shri H.D. Deve
Gowda, the present Prime Minister of India, not being a member of either House
of Parliament was, under the Constitution, not eligible to be appointed as the
Prime Minister of India and the President of India, Dr. Shanker Dayal Sharma,
the third respondent, committed a grave and serious Constitutional error in
swearing him in as the Prime Minister. This action of the third respondent,
says the petitioner, is violative of Articles 14, 21 and 75 of the Constitution
and, therefore, void ab initio and deserves to be quashed by an appropriate
writ of this Court which may be issued in exercise of the powers conferred by
Article 32 of the Constitution. The petitioner has also impleaded the Union of
India, the Speaker of the Lok Sabha and the Leader of the Muslim League in Lok Sabha
(without naming the individual) as respondents 2,4 and 5 respectively.
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 Prime Minister. 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 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.
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
vacate office. 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.
the decision of the High Court was affirmed.
Sharan Verma v. Shri Tribhuvan Narain Singh, Chief Minister, U.P. and Another,
(1971) 1 SCC 616.
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.
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 was to ensure that only a person having allegiance to India shall be
eligible for members; 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 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 Shri T.N. Singh's case (supra). This decision is
reported as Har Sharan Verma v. State of U.P.
1985 (2) SCC 48.
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.
the challenge, this Court held that to appoint a non-member of the 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 Har Sharan Verma v. Union of India and Another (1987) Suppl. SCC
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 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.
Calcutta High Court C.O. No.1336 (w) of 1996 was filed by one Ashok Sen Gupta,
a Senior Advocate, challenging he 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
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.
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.
cannot but observe that the averments in the petition are of a rambling nature
and lack cohesion. It is regrettable that a petition challenging the appointment
to the high office of the Prime Minister of this country should have been
drafted in such a cavalier fashion betraying lack of study, research and
seriousness. The petition abounds in casual and irrelevant averments ranging
from cases on freedom of speech to fraternity, from judicial independence to
judicial review, from civil code to cow slaughter and so on and so forth. In
fairness to the petitioner we must state that he desired to refer to cases on
these subjects but we did not permit him as we thought it would be a sheer
waste of public time. We, therefore, asked him to confine himself to the
principal issue, namely whether a person who is not a member of either House of
Parliament can be appointed a Prime Minister. Even on this point his submissions
were more in the nature of empty rhetoric than of substance. In fact on reading
the petition and his written submissions, the words of Chandrachud, C.J. in Mithilesh
Kumar Sinha, etc. v. Returning Officer for Presidential Election & Ors.,
etc. [(1992) Supp.1 SCR 651] come to mind:
is regrettable that election petitions challenging the election to the high
office of the President of India should be filed in a fashion as cavalier as
the one which characterises these two petitions. The petitions have an extempore
appearance and not even a second look, leave alone a second thought, appears to
have been given to the manner of drafting these petitions or to the contentions
raised therein. In order to discourage the filing of such petitions, we would
have been justified in passing a heavy order of costs against the two
petitioners." 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 :
Council of Ministers to aide and advise President.—
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:
that the President may require the Council of Ministers to reconsider such
advice, either generally or otherwise, and the President shall act in
accordance with the advice tendered after such reconsideration.]
The question whether any, and if so what, advice was tendered by Ministers to
the President shall not be inquired into in any court.
Other provisions as to Ministers.—
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.
The Ministers shall hold office during the pleasure of the President.
Council of Ministers to aid and advise Governor.—
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 in so far
as he is by or under this Constitution required to exercise his functions or
any of them in his discretion.
any question arises whether any matter is or is not a matter as respects which
the Governor is by or under this Constitution required to act in his
discretion, the decision of the Governor in his discretion shall be final, and
the validity of anything done by the Governor shall not be called in question
on the ground that he ought or ought not to have acted in his discretion.
The question whether any, and if so what, advice was tendered by Ministers to
the Governor shall not be inquired into in any court.
Other provisions as to Ministers.—
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:
The Council of Ministers shall be collectively responsible to the House of the
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.
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
The salaries and allowances of Ministers shall be such as Parliament may from
time to time by law determine and, until Parliament so determines, shall be as
specified in the Second Schedule.
that in the States of Bihar Madhya Pradesh and Orissa, there shall be a
Minister in charge of tribal welfare who may in addition be in charge of the
welfare of the Scheduled Castes and backward classes or any other work.
The Council of Ministers shall be collectively responsible to the Legislative
Assembly of the State.
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.
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
The salaries and allowances of Ministers shall be such as the Legislature of
the State may from time to time by law determine and, until the Legislature of
the State so determines, shall be as specified in the Second Schedule.
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.
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). The proviso 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.
74(2) and Article 163(3) are verbatim the same.
75(1) and (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
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
in the following words:
with regard to the first point, namely, that no person shall be entitled to be
appointed a Minister unless he is at the time of his appointment an elected
member of the House, I think it forgets to take into consideration certain
important matters which cannot be overlooked. First is this and it is perfectly
possible to imagine that a person who is otherwise competent to hold the post
of a Minister has been defeated in a constituency for 'some reason and which,
although it may be perfectly good, might have annoyed the constituency, and he
might have incurred the displeasure of that particular constituency. It is not
a reason why a member so competent as that should not be permitted to be
appointed a member of the Cabinet on the assumption that he shall be able to
get himself elected from the same constituency or from another constituency.
After all the privileges that he is permitted is a privilege that extends only
to six months. It does not confer a right on that individual to sit in the
House being elected at all. My second submission is this that the fact that a
nominated Minister is a member of the Cabinet does not either violate the
principle of collective responsibility nor does it violate the principle of
confidence because he is a member of the cabinet if he is prepared to accept
the policy of the Cabinet stands part of the Cabinet and resigns with the
Cabinet when he ceases to have the confidence of the House, his membership of
the Cabinet does not in any way cause any inconvenience or breach of the
fundamental principles on which parliamentary government is based.
this qualification in my judgment is quite unnecessary." At the end of the
discussion, the Constituent Assembly rejected the proposed amendment.
Furthermore, as pointed out in the decision of this Court (1987 Supp. SCC 310),
such an appointment does not militate against the democratic principles
embodied in our Constitution. With respect, we agree.
petitioner then invited our attention to Halsbury's Laws of England (Third
Edition) page 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
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.
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 407 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
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. 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. Besides, the caption of article 75 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
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. If any
Minister does not agree with the majority decision of the Council of Ministers,
his option is to resign or 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.
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 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. By parity of reasoning if a person
who is not a 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
longstanding accepted practice 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 that the 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.
petitioner had contended before this Court when his petition was called on for
hearing on 30.7.1996 that he had filed a similar petition bearing No.774 of
1996 in the Madhya Pradesh High Court and that the High Court had ordered
notice to issue exercising jurisdiction under Article 226 of the Constitution.
He sought permission to withdraw his petition. Here we must mention that in PIL
cases, the petitioner is not entitled to withdraw his petition at his
sweet-will unless the court sees reason to permit withdrawal. In granting the
permission the Court would be guided by considrations of public interest and
would also ensure that it does not result in abuse of the process of law.
Courts must guard against possibilities of such litigants settling the matters
out of the court to their advantage and then seeking withdrawal of the case.
are umpteen ways in which the process can be abused and the courts must be
aware of the same before permitting withdrawal of the petition. This is not to
say that this was one such case. Here we did not allow withdrawal as we noticed
that the very same question was being raised from court to court. It was raised
in the High Courts of Delhi and Calcutta. Notwithstanding the decisions rendered in the said two cases, to which
we have already referred, we were informed by the petitioner himself that he
had raised the issue in the Madhya Pradesh High Court and another such petition
was filed in the Allahabad High Court. To avoid such snowballing leading to
multiplicity of cases we thought it in public interest to examine the issue
with a view of avoiding conflict of opinions. That is the reason why we refused
to permit withdrawal of the petition and decided to settle the issue of law one
way or the other, which we do by this decision.
we part, we cannot help mentioning that on issues of constitutional laws,
litigants who can lay no claim to have expert knowledge in that field should
refrain from filing petitions, which if we may say so, are often drafted in a
casual and cavalier fashion giving an extempore appearance not having had even
a second look. This is the impression that one gets on reading the present
petition. It is of utmost importance that those who invoke this Court's
jurisdiction seeking a waiver of the locus standi rule must exercise restraint
in moving the Court by not plunging in areas wherein they are not well-versed.
Such a litigant must not succumb to spasmodic sentiments and behave like a
knight-errant roaming at will in pursuit of issues providing publicity. He must
remember that as a person seeking to espouse a public cause, he owes it to the
public as well as to the court that he does not rush to court without
undertaking a research, even if he is qualified or competent to raise the
issue. Besides, it must be remembered that a good cause can be lost if
petitions are filed on half-baked information without proper research or by
persons who are not qualified and competent to raise such issues as the
rejection of such a petition may affect third party rights.
it must also be borne in mind that no one has a right to the waiver of the
locus standi rule and the court should permit it only when it is satisfied that
the carriage of proceedings is in the competent hands of a person who is
genuinely concerned in public interest and is not moved by other extraneous
considerations. So also the court must be careful to ensure that the process of
the Court is not sought to be abused by a person who desires to persist with
his point of view, almost carrying it to the point of obstinacy, by filling a
series of petitions refusing to accept the Court's earlier decisions as
concluding the point. We say this because when we drew the attention of the
petitioner to earlier decisions of this Court, he brushed them aside, without
so much as showing willingness to deal with them and without giving them a
second look, as having become stale and irrelevant by passage of time and
challenged their correctness on the specious plea that they needed
reconsideration. Except for saying that they needed reconsideration he had no
answer to the correctness of the decisions. Such a casual approach to
considered decisions of this Court even by a person well-versed in law would
not be countenanced. Instead, as pointed out earlier, he referred to decisions
having no bearing on the question, like the decisions on cow slaughter cases,
freedom of speech and expression, uniform civil code, etc., we need say no more
except to point out that indiscriminate of this important lever of public
interest litigation would blunt the lever itself.
would have ordered the petitioner to pay the cost of this petition but we
refrain from doing so on this occasion in the hope that he will exercise
restraint in future, failing which he may in a similar or like case be visited
with an order of cost. 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.