This question came before the court for consideration in the case of S.P. Anand, Indore vs H.D. Deve Gowda & Others, 1996.
The Petitioner file the petition challenging the appointment of Prime Minister HD Dev gowda in 1996. According to the petitioner, H.D. Deve Gowda, the then 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, committed a grave and serious Constitutional error in swearing him in as the Prime Minister. This action of the president, said, the petitioner, was 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 the Court which may be issued in exercise of the powers conferred by Article 32 of the Constitution.
Contentions of the Petitioner
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, it would be taking a great risk which the country can ill afford to take and, therefore, the court should so construe the relevant provisions of the Constitution as would relieve the country of such a risk.
Considerations by the Court
While considering the matter, the court said,
“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 in the following words:
“Now 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 apart 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. Therefore, 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 the Court (1987 Supp. SCC 310), such an appointment does not militate against the democratic principles embodied in our Constitution.
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 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 People. 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. Even 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.”
Reference
S.P. Anand, Indore vs H.D. Deve Gowda & Others (1996)