Summary of facts
H.D. Deve Gowda was named India's Prime Minister despite his lack of membership
in either House of Parliament. As a result of alleged constitutional violation
of Article 14, Article 21 and Article 75, the petitioner that the President's
acts are void and unenforceable. An appropriate writ may be issued to quash the
action in accordance with Article 32 of the Constitution.
- Can a person sworn in as Prime Minister of India who is not a member of either
House of Parliament be sworn in?
- SP Anand
- Shri H.D. Deve Gowda
- Union of India
- Dr. Shanker Dayal Sharma
- Speaker of the Lok Sabha
- Leader of the Muslim League in Lok Sabha.
- It was contended by the petitioner that it would be taking a great
threat for the country to allow someone who is not elected to represent the
people of the country and in whom the people do not have confidence to be in
charge of governing the Nation in peace and war and that we should therefore
interpret the appropriate provisions of the Constitution in this way. The
moment he heard about the preceding case law, the petitioner said that all
the previous cases and precedents relating to this issue were was outdated
and needed to be re-evaluated in light of the new facts. He made written
contributions, the majority of which are rehashes of the petition's
- Halsbury's English Law states that "By customary practise the Prime
Minister is always either a House of Common or House of Lord"; the petitioner
goes on to add that it is preferred that the person chosen be a member of the
House of Common. Although Article 75(5) of the Constitution permits a non-MP to
be designated Minister for a period of five months, the petitioner argued that
this person cannot be chosen Prime Minister. Although the Constitution allows
for a non-member of Parliament to be appointed a Minister for five months, the
petitioner insisted that Article 75(5) does not allow for such person to be
named Prime Minister. The Prime Minister's position is different from that of a
Minister, and he said it is essential that the person who holds it be a
democratically elected official. As stated in this submission, the Prime
Minister is chosen by the elected representatives of the people and can only
hold the position if the majority of those voted to the Lok Sabha have
confidence in him. To begin with, the court should consider our Constitution's
overall design; if it allows for such a nomination, the debate should be ended.
- The court said the averments in the petition lack coherence and are
rambling in character. Unfortunately, an anti-prime ministerial petition
was prepared with such haste, revealing a lack of research and
consideration for the country's best interests. Anywhere if one looks in
the petition, he'll find unsubstantiated and irrelevant assertions on
everything from freedom of speech to fraternity to judicial independence
and judicial review.
To be fair to the petitioner, the court must say that he wanted to make
reference to instances on these topics, but the court did not let him
because they believed it would be a complete waste of public time. As a
result, the court ordered the petitioner to limit his arguments to the
central question of whether a non-MP may be named Prime Minister. Even
on this issue, the petitioner's arguments amounted to nothing more than
- However, the President is required to act on such advice, and if he
has any reservations, he may ask the Council of Ministers to examine it,
as is currently provided for in Article 75 clause 1. Unless there are
compelling reasons to the contrary, the President is required to follow
such recommendations. Since the President must act in line with council
recommendations as a whole, he must not follow the recommendations of
any one person.
In order to become Prime Minister, a person must be deemed trustworthy
by the President of India, who in turn would select other Ministers on
his or her behalf. Together, the House of People and the Council of
Ministers are held responsible under the Constitution. According to
Article 75 clause 4 of the 3rd Schedule, the Prime Minister and each
Minister take the identical oath of office. That is, the Constitution
does not draw a distinction between the Prime Minister and any other
Although there is no official post for the Prime Minister, the Council of
Ministers has a duty to all members of the House of People, not just the Prime
Minister. On top of that, the whole article's subheading is "additional
provisions with regard to Ministers". There is no specific provision addressing
the selection of the Prime Minister.
While it is true that the President
appoints the Prime Minister after he is chosen by a sufficient number of members
in the House 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 Ministers is held collectively accountable to the House,
ensuring that the democratic machinery functions as intended. If a Minister
disagrees with the Council of Ministers' decision, he has two options: resign or
accept the decision of the majority.
To guarantee collective accountability, the Prime Minister will remove him from
his cabinet if he fails to do as instructed. The Prime Minister is not a member
of Parliament, but as soon as he is chosen, the House holds him and his
Ministers accountable. This concept of collective responsibility controls
democratic processes regardless of who is in power. In order to lead the Council
of Ministers without breaching democratic principles and the necessity of being
responsible to the House, a person does not have to be a House member but he or
she may still be selected provided he or she has the support and trust of the
It was difficult for the court to agree with 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. For a brief period of time (six
months), the English tradition dictates that the Prime Minister must be an
elected member of one of Parliament's houses, ideally the House of Commons. This
is not our constitutional system. Therefore, when the President has any doubts,
he usually requests the person chosen to seek a vote of confidence from
Parliament within a few of days after his appointment to seek clarification.
similar manner, under Article 164 clause 4, anybody who isn't a member of the
State Legislature may be nominated for a six-month term as Chief Minister of the
State. As a result of lengthy recognised practise or agreement in areas where
the law is silent, conventions may emerge that do not violate but rather fill in
the legal vacuum. If the court's reasoning is correct, Indian practise has been
the exact reverse. It has happened in the past that people who were not elected
to the legislature of their home state became Chief Ministers, and vice versa.
Because of this, the court believes that the petitioner's reference to the
British Convention is out of step with our constitutional system and has never
been accepted as a practise in the United States of America.
Interpretation of laws
A Minister who has not served in the State Legislature for six months in a row
loses his or her position when that term expires.
Minister salary and allowances will be as outlined in the Second Schedule until
such time as the State Legislature determines differently for Ministers.
This case was preceded by a number of others in which a similar situation arose.
Shri T.N. Singh[i] was one such instance. People in Uttar Pradesh opposed his
nomination since he didn't belong to either chamber of parliament. Using an
extremely narrow reading of Articles 163 and 164, the court rejected the
petition (filed under Article 226).
With regard to how it was interpreted,
Article 164 Clause 4 had a long history, and there was no need to restrict the
simple thrust of the provision to situations in which someone who is a member of
the Legislature and a Minister leaves his position in State government. Other
instances, such as Shri KP. Tiwari[ii], and Shri Sita ram[iii], raised the same
kinds of questions The Hon'ble Court came to a similar conclusion by using a
rigorous interpretation of the provisions.
Prior to the Supreme Court of India hearing the Deve Gowda case
, the case had
been argued in the high courts of Calcutta and Delhi. Although the petition was
heard, it was rejected and it was deemed unnecessary to include the prime
minister since he is covered by the term "minister. "Articles 74 and 75 deal
with the President and the Prime Minister, while Articles 163 and 164 deal with
the Governor and the Chief Minister.
This is the first distinction between the
two. Article 74 clause 1 and Article 163 clause 1 are almost identical, with the
exception of the unique Governor's function phrase starting with "except" and
concluding with "discretion". The proviso to Article 74(1), which gives the
President a unique prerogative, is absent from Article 163(1), while Article 74
does not include clause (2) of Article 163. This provision has no bearing on the
topic at hand since it is a corollary of Article 163(1)'s exception clause.
Paragraph 2 of Article 74 and paragraph 3 of Article 163 are exactly same.
There are no differences between Article 75(1) and (2) and Article 164(1) other
than Article 164(1) combining two clauses into a single one. Article 75 does not
include the State-specific proviso to Article 164 clause 1. Except for the
resultant modifications, the remainder of the provisions in the two Articles are
It's difficult to subscribe to the petitioner's argument that electing someone
who is not a member of the House as Prime Minister will endanger the national
interest or put the constitution in grave danger. As opposed to the English
custom, our Constitution allows for non-members to serve as Chief Minister or
Prime Minister for a six-month term regardless of which house, they belong to.
This differs from the English practise. When the President has any concerns, he
will typically recommend that the person nominated seek a vote of confidence
from the People's House within a few days of their appointment.
These freasons led the court to dismiss the petition. An interim order was
passed restraining proceedings ongoing in other jurisdictions must be dismissed
with the instruction that they be dealt with in light of this ruling.
Analysis/ Critique of judgment
When it comes to appointment as a Minister, Article 75 clause 5 makes it plain
that the framers intended to enable non-members of Parliament to serve for
6 months before losing their positions in both houses if they were not elected
during that period. This becomes abundantly clear if we take a look at the
debates that took place in the Constituent Assembly.
In order to avoid "striking
at the very heart of democracy," an amendment was suggested that stated:
person may be appointed a Minister unless at the time of his appointment, he is
elected a member of the House." The proposed amendment was rejected by the
Constituent Assembly at the end of the discussions[iv]. In addition, as stated
in this Court's judgement (Har Sharan Verma v. Union of India
), such a
nomination does not stand in conflict with our Constitution's democratic ideals.
In this instance, the court cited the aforementioned precedents and rendered a
decision. The Supreme Court has used a very stringent reading of Article 75(5).
The term minister also includes the Prime minister of our country. Nevertheless,
a flaw appears here: what if this opportunity is exploited? What happens if,
after the first six-month appointment period, the same minister is re-appointed
as minister/prime minister? Fortunately, this issue was addressed in SR Choudhari v. State of Punjab
The court here ruled that re-appointing
a minister after a six-month time window is an undemocratic practise since it
does not represent democratic values' ideals. In a democracy, the minister is
required to be appointed or elected by the people. So, here we see that there is
a well-established precedent regarding this loophole, although there isn't any
precedent specifically addressing the issue whether a prime minister can be
appointed again, if he's isn't a member of either the house of the parliament.
- Har Sharan Verma v. Shri Tribhuvan Narain Singh, Chief Minister, U.P. and
Another, (1971) 1 SCC 616
- Har Sharan Verma v. State of U.P. 1985 (2) SCC 48.
- Hari Saran Verma And Anr. vs Union Of India (Uoi) And Anr 1992 (42) ECR
- S.P. Anand v. H.D. Deve Gowda [1997 SC]. Delhi Law Academy. (n.d.).
Retrieved October 16, 2021, from https://www.delhilawacademy.com/s-p-anand-v-h-d-deve-gowda1997-sc/.
- SR Choudhari v. State of Punjab & Ors (2001) 7 SCC 126