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A case comment on S.P.Anand v/s H.D. Deve Gowda

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.

Issues:
  • Can a person sworn in as Prime Minister of India who is not a member of either House of Parliament be sworn in?
     
Parties involved:
  • Petitioners
    1. SP Anand
  • Respondents
    1. Shri H.D. Deve Gowda
    2. Union of India
    3. Dr. Shanker Dayal Sharma
    4. Speaker of the Lok Sabha
    5. Leader of the Muslim League in Lok Sabha.

Arguments advanced
Petitioner
  1. 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the preceding case law, the petitioner said that all the previous cases and precedents relating to this issue were was outdated and needed to be re-evaluated in light of the new facts.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 assertions.
     
  2. 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.
Court
  1. 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 flowery language.
     
  2. 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 Minister.

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 House.

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.

In 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 identical.

Judgement
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:
"No 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 [v] (1995).

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.

End-Notes:
  1. Har Sharan Verma v. Shri Tribhuvan Narain Singh, Chief Minister, U.P. and Another, (1971) 1 SCC 616
  2. Har Sharan Verma v. State of U.P. 1985 (2) SCC 48.
  3. Hari Saran Verma And Anr. vs Union Of India (Uoi) And Anr 1992 (42) ECR 312 Allahabad
  4. 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/.
  5. SR Choudhari v. State of Punjab & Ors (2001) 7 SCC 126

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