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SUPREME COURT OF INDIA
A.M. AHMADI, C.J.I. AND Mrs. SUJATA V. MANOHAR, J.
S.P. Anand, Petitioner
Versus
H. D. Deve Gowda and others, Respondents.
Civil Writ Petn. No. 850 of 1996 (D. No. 8941 of 1996),
D/- 6-11-1996.
Held : On a plain reading of Article 75(5) it is obvious that the Constitution-makers desired to permit a person who was not a member of either House of Parliament to be appointed a Minister for a period of six consecutive months and if during the said period he was not elected to either House of Parliament, he would cease to be a Minister. (Para 13)
The person who is appointed the Prime Minister is chosen by the elected representatives of the people and can occupy the position only if he enjoys the confidence of the majority of the elected representatives in the Lok Sabha. Secondly, we must bear in mind the scheme of our Constitution and if our constitution permits such appointment, that should put an end to the controversy. (Para 14)
Further held; the President has to act in accordance with the advice of the Council of Ministers as a body and not go by the advice of any single individual. Only a person who, the President thinks, commands the confidence of the Lok Sabha would be appointed the Prime Minister who in turn would choose the other Ministers. The Council of Ministers is made collectively responsible to the House of the People. The form of the oath prescribed in the Third Schedule under Article 75(4) is the same for the Prime Minister as well as a Minister. In other words, the Constitution does not draw any distinction between the Prime Minister and any other Minister in this behalf. This is not to say that the Prime Minister does not enjoy a special status; he does as the head of the Council of Ministers but the responsibility of the Council of Ministers to the House of the People is collective. Therefore, even though a Prime Minister is not a member of either House of Parliament, once he is oppointed he becomes answerable to the House and so also his Ministers and the principle of collective responsibility governs the democratic process. Even if a person is not a member of the House, if he has the support and confidence of the House, he can be chosen to head the Council of Ministers without violating the norms of democracy and the requirement of being accountable to the House would ensure the smooth functioning of the democratic process. By parity of reasoning if a person who is not a member of the State Legislature can be appointed a Chief Minister of a State under Article 164(4) for six months, a person who is not a member of either House of Parliament can be appointed Prime Minister for the same duration. We must also bear in mind the fact that conventions grow from longstanding accepted practice or by agreement in areas where the law is silent and such a convention would not breach the law but fill the gap. If we go by that principle, the practice in India has been just the opposite. In the past, persons who were not elected to State Legislatures have become Chief Ministers and those not elected to either House of Parliament have been appointed Prime Ministers. We are, therefore, of the view that the British Convention to which the petitioner has referred is neither in tune with our constitutional scheme nor has it been a recognised practice in our country. (Para 15)
(ii) PUBLIC INTEREST LITIGATION-Permission to withdraw petition-Disallowed-In PIL cases, petitioner is not entitled to withdraw his petition at his sweet-will unless the Court sees reason to permit withdrawal.
Held that in PIL cases, the petitioner is not entitled to withdraw his petition at his sweet-will unless the Court sees reason to permit withdrawal. In granting the permission the Court would be guided by considerations of public interest and would also ensure that it does not result in abuse of the process of law. Courts must guard against possibilities of such litigants settling the matters out of the court to their advantage and then seeking withdrawal of the case. There are umpteen ways in which the process can be abused and the courts must be aware of the same before permitting withdrawal of the petition. This is not to say that this was one such case. Here we did not allow withdrawal as we noticed that the very same question was being raised from court to court. It was raised in the High Courts of Delhi and Calcutta. Notwithstanding the decisions rendered in the said two cases, to which we have already referred, we were informed by the petitioner himself that he had raised the issue in the Madhya Pradesh High Court and another such petition was filed in the Allahabad High Court. To avoid such snowballing leading to multiplicity of cases we thought it in public interest to examine the issue with a view of avoiding conflict of opinions. That is the reason why we refused to permit withdrawal of the petition and decided to settle the issue of law one way or the other, which we do by this decision. (Para 16)
(iii) CONSTITUTIONAL LAWS-Issues of;-Litigants who can lay no claim to have expert knowledge in that field should refrain from filing petitions.
Held that on issues of constitutional laws, litigants who can lay no claim to have expert knowledge in that field should refrain from filing petitions, which if we may say so, are often drafted in a casual and cavalier fashion giving an extempore appearance not having had even a second look. This is the impression that one gets on reading the present petition. It is of utmost importance that those who invoke this Courts jurisdiction seeking a waiver of the locus standi rule must exercise restraint in moving the Court by not plunging in areas wherein they are not well-versed. Such a litigant must not succumb to spasmodic sentiments and behave like a knight-errant roaming at will in pursuit of issues providing publicity. He must remember that as a person seeking to espouse a public cause, he owes it to the public as well as to the court that he does not rust to court without undertaking a research, even if he is qualified or competent to raise the issue. Besides, it must be remembered that a good cause can be lost if petitions are filed on half-baked information without proper research or by persons who are not qualified and competent to raise such issues as the rejection of such a petition may affect third party rights. Lastly, if must also be borne in mind that no one has a right to the waiver of the locus standi rule and the court should permit it only when it is satisfied that the carriage of proceedings is in the competent hands of a person who is genuinely concerned in public interest and is not moved by other extraneous considerations. So also the court must be careful to ensure that the process of the Court is not sought to be abused by a person who desires to persist with his point of view, almost carrying it to the point of obstinacy, by filing a series of petitions refusing to accept the Courts earlier decisions as concluding the point. (Para 17)
Judgement
A.M. Ahmadi, CJI. - 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. 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. See Har Sharan Verma v. Tribhuvan Narain Singh, Chief Minister, U. P., (1971) 1 SCC 616 : (AIR 1971 SC 1331)
4. 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 require
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