AHMADI - (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. Now, Article 164(1) provides that a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period, cease to be a Minister. It was, however, urged that on the plain language of the said provision, it is obvious that it speaks of appointment of a Minister who is a member of the State Legislature but who loses his seat at a later date in which case he can continue as a Minister for a period of six months during which he must be re-elected or otherwise, must vacate office. Interpreting the said clause in the context of Article 163 and other clause of Article 164, this Court held that Clause 4 of Article 164 had an ancient lineage and there was no reason to whittle down the plaint thrust of the said provision by confining it to cases where a person being a member of the Legislature and a Minister, for some reason, loses his seat in the State. Accordingly, the decision of the High Court was affirmed. The same petitioner again raised the issue when Shri K. P. Tiwari was appointed in November, 1984 as a Minister of the U. P. Government even though he was not a member of either House of the State Legislature. He contended that the decision rendered by this Court in the case of T. N. Singh, (AIR 1971 SC 1331) was not good law since the Court had overlooked the amendment of Article 173(a) effected by the Constitution (Sixteenth) Amendment Act. 1963). (The corresponding provision in regard to Parliament is Article 84(a)). Dealing with this contention this Court pointed out that the object of introducing the amendment in clause (a) of Article 173 of the Constitution was to provide that not only before taking his seat shall a member of Legislature take the oath prescribed by the Third Schedule as required by Article 188 of the Constitution but that even before standing for election a candidate must take the same oath. This was to ensure that only a person having allegiance to Indian shall be eligible for membership that Legislature. The Court further pointed out that clause (4) of Article 164 of the Constitution provides that a Minister (which includes a Chief Minister also) who, for any period of six consective months, is not a member of the Legislature of a State shall, at the expiration of that period cease to be a Minister. In other words the Court held that a person who was not a member of either House of the State Legislature could also be appointed by the Governor as the Minister (which includes the Chief Minister) for a period not exceeding six consective months. The Court, therefore, did not see any material change brought about in the legal position by reason of the amendment of Article 173(a) of the Constitution from that as explained in the earlier decision in T. N. Singh's case (AIR 1971 SC 1331) (supra). This decision is reported as Har Sharan Verma v. State of U.P., (1985) 2 SCC 48 : (AIR 1985 SC 282).
(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). We may now refer to two decision rendered by the High Court of Delhi and Calcutta in which the appointment of the present Prime Minister Shri H. D. Deve Gowda was challenged on more or less the same ground. One Dr. Janak Raj Jai filed a Writ Petition No. 2408 of 1996 in which he questioned the appointment since the present Prime Minister was not a member of either House of Parliament on the as the Prime Minister of India. He contended that while under Article 75(5) a person can be appointed a Minister, he cannot be and should not be appointed a Prime Minister. Dealing with this submission the High Court, after referring to Article 74 and 75 of the Constitution, held that "when Article 75(5) speaks of a "Minister" it takes within its embrace that Minister also who is described in the Constitution as Prime Minister". In other words that High Court found that the Constitution did not make any distinction between the Prime Minister and other Minister. The High Court dismissed the petition.;