This article is written by Almana Singh. It deals with the thorough analysis of the judgement pronounced in the case of S.P. Anand vs. H.D. Deve Gowda and Ors., AIR 1997 SC 272, concerning its facts, issues raised, arguments advanced, as well as the legal provisions involved relating to the Constitution of India.

Introduction

One of the key mantras of democracy is that it stands on the principle “democracy is of the people, for the people and by the people”, but is that really so? Ironically enough, when the largest democracy in the globe allows an individual who is not directly elected by the people to be appointed as the Prime Minister who will lead the governance and administration of that country for the next 5 years, if not more. The complexity of this issue was resolved by the Hon’ble Supreme Court of India in the case S.P. Anand vs. H.D. Deve Gowda and Ors. (1997), where the constitutionality of the appointment of Shri H.D. Deve Gowda as the 11th Prime Minister of India, despite the lack of membership in either House of Parliament, was questioned.

Details of the case 

Case Name 

S.P. Anand vs. H.D. Deve Gowda and Ors. 

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Petitioner

S.P. Anand 

Respondents

There are 5 respondents involved in the case, namely,

Respondent no. 1: H.D. Deve Gowda;

Respondent no. 2: Union of India;

Respondent no. 3: Dr. Shankar Dayal Sharma;

Respondent no. 4: Speaker of Lok Sabha;

Respondent no. 5: Leader of Muslim League in Lok Sabha.

Court

The Hon’ble Supreme Court of India

Type and case no.

Writ Petition (Civil) No. 850 of 1996

Date of judgement

6th November 1996 

Bench

The then Chief Justice of India A.M. Ahmadi and Justice S.V. Manohar

Equivalent citations

MANU/SC/0075/1997, 1996 INSC 1293, 1996 (4) CCC 136, JT 1996 (10) SC 274

Provisions and Statutes involved

Articles 32, 74, 75, 163, and 164 of the Constitution of India

Facts of the case 

Shri H.D. Gowda, the respondent, resigned from the post of Chief Minister of Karnataka to serve as the 11th Prime Minister of India. He was not a member of either House of Parliament at the time of his appointment. S.P. Anand, the petitioner, filed this petition under Article 32 questioning this appointment and posed an issue of whether a position of such a high rank as Prime Minister of India can be given to a person who is not even a member of the Parliament.

Issue raised 

The main issue dealt with in this case was whether a person who is not a member of either House of Parliament can be sworn in as the Prime Minister of India.

Arguments of the parties

Petitioners 

  1. The petitioner contended that Shri H.D. Gowda is not eligible to be appointed as the Prime Minister because of his lack of membership in either House of the Parliament.
  2. The petitioner contended that this appointment had violated the fundamental rights guaranteed to him under Articles 14, 21 and 75 of the Constitution of India, making the appointment void ab initio.
  3. The petitioner argued that a person who is not elected by the citizens of India and has not gained their trust to hold a position as significant as that of a Prime Minister poses a great risk to the nation’s security during times like war.
  4. The petitioner referred to an authoritative encyclopaedia of law in England, namely, Halsbury’s Laws of England and Article 75(5) of the Constitution of India, which allows for the appointment of a minister even when he lacks membership in either of the Houses of Parliament. However, the petitioner made a narrow interpretation and suggested that it does not allow for the appointment of a high position as that of a Prime Minister. 

Respondent  

The respondents denied the contentions of the appellants and argued that Article 75(5) of the Constitution of India allows for the appointment of Ministers even though they lack membership in either House of the Parliament. 

Laws discussed in S.P. Anand vs. H.D. Deve Gowda and Ors. (1997)

The court, in this case, referred to several Articles of the Constitution of India, which have been briefed below for a thorough perusal.

Article 32 of the Constitution of India

Article 32(1) says that an individual has the right to move to the Supreme Court by appropriate proceedings for the enforcement of rights given in Part III of the Constitution. 

Article 32(2) gives the power to the Supreme Court to issue orders, directions, or writs, whichever may be appropriate for the enforcement of the rights guaranteed under Part III. 

The Writs referred to in this section are of 5 types:

  1. Writ of Habeas Corpus: It is used when the fundamental rights of individual liberty are breached due to unlawful detention. 
  2. Writ of Mandamus: It is issued by the court when a public official has failed to perform or abstained from performing their duties and to resume the work. 
  3. Writ of Prohibition: It is issued to forbid a court of lower jurisdiction from going beyond its jurisdiction that it does not possess. 
  4. Writ of Certiorari: The literal meaning of Certiorari is “To be informed”. It is issued by the court of a higher jurisdiction to a lower court or tribunal and orders them to transfer a case or quash their order in a case.
  5. Writ of Quo-Warranto: It is issued when the court asks the question, “What is your authority?”. It is used to challenge the authority of a person to hold a position in a public office. It can’t be issued to private offices. 

Article 32(3), in simpler terms, says that the Supreme Court enjoys the authority to enforce fundamental rights through order, decrees, and writs, as stated in Clause (2). Parliament can also pass laws allowing other courts to exercise similar powers within their respective jurisdictions without decreasing the powers of the Supreme Court. 

Article 32(4) states that the rights guaranteed under this Article should not be suspended except in cases where the Constitution says the same. 

Article 74 of the Constitution of India

Article 74 provides provisions to the Council of Ministers in aiding and advising the President. Article 74 has two clauses, which are briefed below for a thorough understanding. 

Article 74(1) states that there will be a council of ministers led by the prime minister, and the role of the council will be to assist and provide guidance to the president. It also states that the President must follow the advice when performing their duties. However, the President can ask the Council of Ministers to review their advice, but after reconsideration, the President will be obliged to follow the revised advice provided. 

Article 74(2) states that the court cannot question the matters as to what advice was given to the President by the Council of Ministers. 

Article 75 of the Constitution of India

Article 75(1) gives the provision for the appointment of the Council of Ministers. It states that the Prime Minister shall be appointed by the President, and the Council of Ministers should be appointed by the President but on the advice of the Prime Minister. 

  • Article 75(1A) states that the total number of Ministers in the Council of Ministers, including the Prime Minister, should not exceed 15% of the total number of members in the Lok Sabha, i.e. House of the People. If there are 543 members in the Lok Sabha, then the number of Council of Ministers can be 81, including the Prime Minister. 
  • Article 75(1B) states that a person who is a member of either House of Parliament, i.e. Lok Sabha and Rajya Sabha and who belongs to any political party and is disqualified under Paragraph 2 of the Tenth Schedule cannot be appointed as a Minister under the Council of Ministers. This restriction lasts from the date of such disqualification until their term in office would have normally ended, but if they contest an election in either of the Houses of Parliament before this period ends and get elected, the restriction ends on the date they are elected. 

Article 75(2) states that Ministers should hold office during the pleasure of the President. Here, the term “Pleasure of President” refers to the independent power of the President to make a decision without being required to take advice from Prime Ministers or the Council of Ministers.

Article 75(3) states that the Council of Ministers is collectively responsible to the House of the People, i.e. the Lok Sabha. 

Article 75(4) states that before a Minister joins the office, the President should administer the oaths of the office and secrecy in accordance with the forms outlined in the Third Schedule. 

Article 75(5) states that a Minister who is not a member of any of the Houses for six consecutive months should cease to be a member of the Council of Ministers.

Article 75(6) states that the salaries and allowances of the Ministers should be determined by the Parliament through legislation. Until the Parliament makes such a determination, the salaries and allowances will be governed in accordance with the Second Schedule. 

Article 163 of the Constitution of India

Article 163(1) states that there should exist a Council of Ministers at the State level, which is led by the Chief Minister to aid and advise the Governor in performing his duties except in the cases where the Constitution itself requires the Governor to act at his discretion. 

Article 163(2) states that if any question arises regarding a matter in which the Governor is required to act at his discretion, it is stated that the Governor’s decision will be held final. The validity of the Governor cannot be challenged in court. 

Article 163(3) states that courts are not allowed to investigate or question the advice given by the Ministers to the Governor.

Article 164 of the Constitution of India

Article 164(1) states that the Chief Minister should be appointed by the Governor, and the other Ministers should be appointed by the Governor but on the advice of the Chief Minister. It also states that the Minister shall hold the office at the pleasure of the Governor, meaning they can be removed from office at any time. 

The proviso says that in certain states like Chhattisgarh, Jharkhand, Madhya Pradesh, and Odisha, there should be a tribal welfare minister. This Minister can also be tasked with overseeing the welfare of Scheduled Castes and Backward classes. 

  • Article 164(1A) states that the total number of Ministers, including the Chief Minister in the Council of Ministers at the state level, should not exceed 15% of the total number of members in the Legislative Assembly of that state. It also states that there must be a minimum of 12 members in the Council of Ministers at the state level. The proviso says if a state has more Ministers than the prescribed limit, either exceeding the recommended 15% or falling below the minimum 12 ministers, then the state is required to adjust the number of Ministers to comply with the limits set in clause (1A) of Article 164 within 6 months from the date specified by the President through a public notification. 
  • Article 164(1B) states a restriction that if a member of a State Legislative Assembly or either House of the Legislature and an individual who belongs to a political party is disqualified for being a member of that House because of the disqualifications provided under the paragraph 2 of the Tenth schedule. They will be restricted from being appointed as a member of the Council of Ministers. This restriction lasts from the date of their disqualification until the expiration of their term as a member of that House, and if they contest any election in the Legislative Assembly or the Legislative Council, as the case may be, before the expiry of such period or on the date when he is declared elected, whichever is earlier. 

Article 164(2) states that the Council of Ministers of the State will be collectively responsible to the Legislative Assembly of the State.

Article 164(3) states that the Governor shall administer an oath of secrecy before the Minister enters their office in accordance with the forms set out for this purpose in the Third Schedule. 

Article 164(4) states that if a minister for a consecutive period of 6 months is not a member of the State legislature, then he ceases to be a minister at the expiration of such period. 

Article 164(5) states that the salaries and allowances of the Ministers should be decided by the Legislature of the State periodically. Until the legislature determines, the same will be governed by the Second Schedule. 

Judgement in S.P. Anand vs. H.D. Deve Gowda and Ors. (1997)

The Court started discussing the question at hand and referred to a judgement given by the Constitutional Bench of the Supreme Court. In the case of Har Sharan Verma vs. Shri Tribhuvan Narain Singh, Chief Minister, U.P. and Anr. (1971), T.N. Singh was appointed as the Chief Minister of Uttar Pradesh even though he lacked membership in both houses of the State Legislature on the date of his appointment. The appellant contended that Article 164(4), which states that a minister ceases to hold the office if he is not part of the Legislature consecutively for 6 months, should only apply to cases where the minister was initially a member but was disqualified at a later date. However, the court, in this case, applied the principle enshrined in Article 164(4) broadly and opined that it also allows someone who was originally not a member on the condition that he becomes a member within 6 consecutive months. 

The Court cited the case of Har Sharan Verma vs. State of U.P. (1985). The appellant contended that K.P. Tiwari was appointed as a Minister of the U.P Government even though he was not a member of either house of the State Legislature. The appellant contended that the previously cited case of T.N. Singh was not good law since it overlooked the amendment of Article 173(a), which states that candidates for legislative positions should take an oath prescribed by the Third Schedule before standing for elections to ensure that only an individual having faithfulness towards India is elected. However, the Court maintained its stance and asserted that the amendment of Article 173 does not change the law established in Article 164(4) and the T.N. Singh case, which affirms that individuals not belonging to the State Legislature can be appointed as Ministers, even Chief Minister on the precondition that they join the State Legislature within 6 consecutive months. 

The court referred to the judgement pronounced in the case of Har Sharan Verma vs. Union of India (1987). In this case, the appointment of Shri Sita Ram Kesri as a Cabinet Minister was questioned because he was not a member of either House of Parliament on the date of his appointment. The court, on the combined reading of provisions mentioned in Article 75(5) and Article 88 of the Constitution of India, yet again, upheld the appointment of Shri Sita Ram Kesri and reaffirmed that an individual not part of either Lok Sabha or Rajya Sabha can also be appointed as Cabinet minister on a precondition that he gets elected within the 6 months from the date of appointment. 

The Court then referred to the two judgements pronounced by the Delhi High Court and Calcutta High Court, which questioned the appointment of the present respondent, Shri. H.D. Gowda on similar grounds. 

Firstly, in the Delhi High Court, Dr Janak Raj Jai filed a writ petition contending that H.D. Gowda was not a member of either House of Parliament on the date of their appointment and he should not be appointed as the Prime Minister because it contravenes with the principles established in Article 75(5) of the Constitution of India. The Delhi High Court opined that the word “Minister” includes “Prime Minister” too and dismissed the petition. 

Secondly, in the Calcutta High Court, a petition was filed by a Senior Advocate, Mr. Ashok Sen Gupta, challenging the appointment of H.D. Gowda as the Prime Minister, but the Single Judge bench of the High Court of Calcutta reaffirmed that a minister who is not a part of either of the Houses of Parliament could indeed be appointed as the Prime Minister.

The petitioner had contended that an individual who is not elected by the people and lacks their trust should not be allowed to take the office of a Prime Minister as it poses a great risk to the Nation’s security, and when the Court referred to the aforementioned case laws, petitioner argued that the decisions are obsolete and needs to be reconsidered. The Court replied that the petition lacked study, research and seriousness. It contains casual and irrelevant arguments from freedom of speech to fraternity to judicial review and so on. The Court believed that the petition was empty rhetoric and held no substance. 

The Court now compared Articles 74 and 75 parallel to Articles 163 and 164 of the Constitution of India. All four of them have been elaborated under the heading “Laws Involved”. The court observed that, 

  1. Articles 74 and 75 deal with the President and Prime Minister of India, while Articles 163 and 164 relate to the Governor and the Chief Minister of the State. 
  2. Article 74(1) and Article 163(1) are similar in nature.  Article 74(1) grants a privilege to the President, which is not found in Article 163(1), and the provisions of Article 163(2) are entirely absent if compared to Article 74.
  3. Articles 75(1) and (2) are similar to Article 164(1), except that the latter combines the two clauses into one. 
  4. The proviso of Article 164(1) is only applicable to States and is not present in Article 75. 
  5. The remaining clauses of the two Articles are the same, but there are a few minor differences. 

The Court then referred to the debates of the Constituent Assembly, which refers to the interpretation of Article 75(5) of the Constitution of India, which states that an individual can join the office even though they are not a member of either House of the Parliament on the condition that they will get elected in the next 6 months. When the Constitution of India was being drafted, there was a debate that such an appointment would undermine the ideals of democracy. A few amendments were proposed in regard to these provisions, but they were rejected by Dr. B.R. Ambedkar, the principal drafter of the Constitution of India. He was of the opinion that competent individuals who might have lost the election due to one reason or another should not be restricted from ministerial appointments because they can still contest elections and win from some other constituency. He also said that a minister who is nominated as a member of the cabinet does not violate collective responsibility as long as they support the policies of the cabinet and resign in case they lose confidence in the House.  

The petitioner referred to Halsbury’s Laws of England (Third Edition), page 347 and para 747, which says conventionally, a Prime Minister is either a member of the House of Commons or the House of Lords. The petitioner interpreted Article 75(5) narrowly and suggested that although it allows for the appointment of a minister who lacks membership of either House of the Parliament, it does not in any way or form suggest the appointment of a high position like that of the Prime Minister without being elected by the people. The Court, while rejecting this contention, gave several arguments, which are briefed below.

  • Firstly, this submission was rejected, and the Court rendered that the Prime Minister is chosen by the people who are elected representatives of the Citizens of India, and the Prime Minister enjoys the confidence of the majority of the elected representatives in the Lok Sabha. 
  • Secondly, the court established that there is no difference between the Minister and Prime Minister and observed that Article 75(1) forms a Council of Ministers with the Prime Minister as the head to aid and advise the President and the President is expected to act according to the advice of the Council of Ministers and not go solely on the advice of any single individual. The President would only appoint a person who enjoys confidence in Lok Sabha as the Prime Minister, who in turn would choose the Cabinet of Ministers. The Marginal Note of Article 75 also says “other provisions as to Ministers” and there are no other provisions dealing with the Prime Minister as such. 
  • Thirdly, the Prime Minister and Council of Ministers, once appointed, have a collective responsibility towards the Lower House of the Parliament, i.e. Lok Sabha, to ensure smooth functioning and democratic machinery. Therefore, even though the Prime Minister might not be a member of either House of Parliament but once he is appointed he becomes collectively responsible towards the Council of Ministers, the President and the citizens of India. 
  • Fourthly, the English convention cited by the petitioner was rejected simply because our constitution allows for the appointment of the Prime Minister despite the lack of membership in either house. The Court also opined that the British Convention cited is not in tune with the Constitutional scheme of India and it is not a recognised practice in India.

The Supreme Court referred to a minor issue where the petitioner in the case at hand informed the Supreme Court that a similar petition had been filed in the Madhya Pradesh High Court, and they wanted to withdraw their PIL. However, the court denied the request because the petitioner was raising the same issue in the High Court of Delhi, Madhya Pradesh, Calcutta and Allahabad, and to prevent the issue of conflicting judgements and avoid a flood of similar cases, the court, by itself decided to address the issue at hand comprehensively. 

In the last paragraph of the judgement, the Court had a critical tone and reprimanded the petitioner for filing a poorly researched and casually drafted petition, which lacked a clear understanding of constitutional law and urged the petitioner to refrain from doing so. The Court opined that we as individuals should realise the importance of responsibility and restrict ourselves when invoking the court’s jurisdiction at the time of filing petitions with impulsive sentiments for publicity and fame because it can harm many important causes and affect the actual rights of a deprived party.

The Court ruled in favour of Shri H.D. Gowda, the respondent and held his appointment valid, and the petition was dismissed without costs. 

Precedents referred to in the case

To reach the conclusion and answer the question about the appointment of Shri H.D. Gowda, the Supreme Court referred to several cases, which have been briefed below for a thorough understanding.

Har Sharan Verma vs. Shri Tribhuvan Narain Singh, Chief Minister, U.P. and Anr. (1971)

The core issue in the case of Har Sharan Verma vs. Shri Tribhuvan Narain Singh, Chief Minister, U.P. and Anr. (1971) was whether the appointment of Tribhuvan Narain Singh as the Chief Minister of Uttar Pradesh was valid even though he lacked the membership of either House of the State Legislature at the time of his appointment. The judgement in this case was delivered by Justice G.S. Lal. The Court held that Articles 163 and 164 of the Constitution of India do not specify any qualifications for the appointment of a Chief Minister and reaffirmed that a non-member can also be sworn in as the Chief Minister as long as the person gets elected in either house of the State Legislature within six consecutive months. The Court also ruled that the Council of Ministers, including the Chief Minister, have a collective responsibility to the Legislative Assembly as per Article 164(2). As long as the appointed non-member chief minister enjoys confidence in the Legislative Assembly, it cannot be held as a violation of Constitutional principles enshrined in the Constitution of India. The writ petition filed by Har Sharan Verma was dismissed, and the Court upheld the validity of Tribhuvan Narain Singh’s appointment as the Chief Minister of Uttar Pradesh. 

Har Sharan Verma vs. State of Uttar Pradesh (1985)

The court, in this case, dealt with the question of the constitutional validity of K.P. Tewari’s appointment as a Minister in the Government of Uttar Pradesh. The petitioner contended that the Constitution (Sixteenth) Amendment Act, 1963, had restricted the appointment of an individual who was not a member of either House of State Legislature as the Minister. The judgement in this case was delivered by Justice Venkataramiah, who dismissed the petition and held that Article 164(4) explicitly allows an individual who lacks membership in either house to be appointed as Minister, including the Chief Minister. However, a condition is that they should become a member of the State Legislature within 6 months of the appointment. The Court ruled that the amendment proposing a Minister should be a member of the Legislature at the time of appointment was rejected by the Constituent Assembly, which indicated that the framers of the Constitution did not intend to restrict such appointments to members only. 

This case was another precedent in the series of cases where the Court upheld the appointment of an individual who lacked membership in the State Legislature, citing that the Constitution of India, specifically Articles 163 and 164, allows it. 

Har Sharan Verma vs. Union of India (1987)

The petitioner in Har Sharan Verma vs. Union of India(1987) contended that the appointment of Shri Ram Kesari as Minister of State in the Central Cabinet, even though he lacked membership in either House of Parliament, is constitutionally invalid and should be deemed unconstitutional. This petition was initially rejected by the Lucknow Bench of the Allahabad High Court. However, the petitioner sought special leave to appeal against this decision in the Supreme Court, but the Supreme Court dismissed the application and maintained a stance similar to that of the High Court. The Supreme Court noted that Shri Sita Ram Kesari, the respondent whose appointment was being questioned, had already ceased to be a Minister. However, the Court still examined the questions posed by the appellant and held that Articles 75(5) and 88 of the Constitution of India allow for the appointment of a  Minister even in the absence of membership in the legislature. The Court again referred to the debate where Dr. B.R. Ambedkar had opposed the Constitution (Sixteenth) Amendment Act, 1963 and opined that a temporary lack of membership should not cost competent individuals a seat in Parliament. 

The Court, yet again, concluded that appointing a non-member as Minister does not undermine any democratic and constitutional principles as long as the individual becomes a member of the Legislature within 6 consecutive months. 

Analysis of S.P. Anand vs. H.D. Deve Gowda and Ors. (1997)

Allowing the appointment of non-members can have both positive and negative impacts on constitutional principles. It provides the flexibility to consider the appointment of competent individuals who might not have been elected for one reason or another. This reasoning was also discussed by Dr. B.R Ambedkar in the Constituent Assembly when an amendment was proposed to change the provisions which allow members who lack membership in either house of the parliament to be appointed as ministers, and he was of the opinion that this does not hamper the democratic principles. 

On the other hand, appointing non-members raises several concerns, such as the fact that one of the core principles of a functioning democracy is accountability. This principle is hampered when individuals who have not been directly elected by the people for whom this democracy is made are appointed to ministerial positions. It also weakens the role of a legislative body because a person who is not directly elected would not be fully involved in the parliamentary process and debates, which erodes the principle of collective responsibility. 

Conclusion

The Hon’ble Supreme Court in the case of S.P. Anand vs. H.D. Deve Gowda and Ors. (1997) ruled in favour of Shri H.D. Deve Gowda, upholding the constitutionality of his appointment as the then Prime Minister of India. The Court relied on several precedents and came to the conclusion that the word “minister” in Article 75(5), which allows for the appointment of non-members of Parliament as Minister, also includes the appointment of the Prime Minister of India, and there is no other rule or statute that governs the same. The Court also opined that a petition of this grave nature where Constitutional provisions are questioned should not be filed without thorough research and understanding of the legal precedents and constitutional provisions just for the sake of the name and fame it comes with. 

Frequently Asked Questions (FAQs)

According to Article 75(5), what is the maximum period allowed before a non-member minister is disqualified? 

Article 75(5) of the Constitution of India allows for a period of 6 consecutive months before a Minister is disqualified. 

Is a non-member allowed to participate in parliamentary proceedings?

Yes, Article 88 of the Constitution of India allows non-members to participate in parliamentary proceedings, including speaking and discussing issues, but they do not have the right to vote on any subject. 

References

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