S P ANAND INDORE Vs. H D DEVEGOWDA

JUDGEMENT

(1.) CAN a 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. Shankar 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.

(2.) A 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, correspondent 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.

(3.) NOT 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. Spurning the challenge, this Court held that to appoint a non-member of the Parliament as the minister did not militate against the constitutional mechanism nor did it military 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 speaking, and otherwise to take part in the proceedings, of either House, in joint sitting of the House, 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, (1987) Suppl SCC 310 : (AIR 1987 SC 1969).