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INTRODUCTIONThe Prime Minister of the nation, the third citizen, is the head of the Government of India and enjoys a number of powers such as occupying the position of the Chairman of the NITI Aayog and the Interstate council. It is with the advice of the Prime Minister that the President appoints Comptroller and Auditor General of India, the members of the Finance Commission, the Attorney General of India, and other crucial posts to name a few. The Prime Minister is the leader of the Lok Sabha, which represents the people of the nation. But can a person who is not a member of the Lok Sabha, or the Rajya Sabha either for that matter can become the Prime Minister of the country? This question can be answered on the basis of a few cases explained further in this Article
Har Sharan Verma v. Tribhuvan Narain Singh, Chief Minister U.P. Shri T.N. Singh was appointed the Chief Minister of Uttar Pradesh on October 18, 1970. His appointment was challenged on the ground that he was not a member of either House of the State Legislature. According to Article 164(4), a Minister ceases to be a Minister, if he/she is not a member of State Legislature for a consecutive period of six months. It was contended by the Court that the aforementioned Article is applicable to a Minister who is a member of the State Legislature already. The Court held that the Article had an “ancient lineage” and therefore it was unnecessary “to whittle down the plain 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.” In other words, the Court declared that the Governor could appoint someone who is not a member of either of the Houses as a Minister (this includes Chief Minister as well) This decision was affirmed by the High Court.
Har Sharan Verma v. State of U. PThis case too was filed by the same petitioner against the appointment of Shri K.P. Tiwari as a Minister in the UP government in spite of the fact that he was not a member of the State Legislature. However, in this case, the petitioner argued that the Court in the previous decision had overlooked the amendment of Article 173(a) affected by the Constitution (Sixteenth) Amendment Act, 1963. The Court answered this question by observing that the amendment was made in order to ensure that a member of the legislature takes the same oath (as prescribed by the third schedule) just before taking his seat as he did before standing for the election as prescribed. This step would make sure that only a person having allegiance to India shall be eligible for membership in the legislature. The Court, therefore, concluded that this amendment had a different purpose altogether and in no way did it affect or negate the decision taken in the earlier case according to which a non - member of the legislature could be appointed as the Minister, including the Chief Minister.
Harsharan Verma v. Union of India The very same petitioner, still not satisfied with neither the Court’s standing on the main question nor the given reasoning behind it, filed a suit again, this time, against the appointment of Shri Sita Ram Kesri as a Minister of State of the Central Cabinet. He too, like the previous instances was not a member of either House of the Parliament at the date of his appointment. Article 75(5) corresponds with Article 164(4) and states that a Minister shall cease to be a Minister if he/she is not a member of either house of the Parliament for a consecutive period of six months. The Court concluded, after considering Article 75(5) in a manner similar to Article 164(4) observed that appointing a non - member of the Parliament to the post of a Minister in the central cabinet “did not militate against the constitutional mechanism nor did it militate against the democratic principles embodied in the Constitution.”
This case was different from the previous two cases only in the terms that here, the appointment of a non - member of the Parliament to the post of a Minister in the Cabinet was questioned while in the previous two instances, we had dealt with the appointment of those who were not a member of either House of the State Legislature. Mainly, Article 75(5) was referred to in order to ascertain the answer to the former question while Article 16(4) was used to answer the latter. Both led to the same conclusion. Someone who is not a member of the Parliament could be appointed as a Minister of the central cabinet and someone who is not a member of the State Legislature could be appointed as a Minister which includes the post of the Chief Minister. These cases will be used in the following case in order to determine whether a person who is not a member of the Parliament could be appointed as the Prime Minister.
S.P. Anand, Indore vs H.D. Deve Gowda & Others The petitioner contended that Shri H.D. Deve Gowda, who was the first respondent was not eligible to be appointed as the Prime Minister of India, the reason being that he was not a member of either house of the Parliament. It was further contended by the petitioner that the third respondent, the President of India, Dr. Shanker Dayal Sharma had committed a grave error in swearing H.D. Deve Gowda as the Prime Minister. The petitioner stated that this act of the President violated Articles 14, 21, and 75 of the Constitution and therefore should be quashed by the Court by passing of an appropriate writ, as the Court deemed fit.
This case thus presented an opportunity to a Constitution Bench to ponder upon the question of whether a person who happens to be not a member of either of the house of the Parliament could be appointed to the position of the Prime Minister. Considering Articles 74 and 75 and their corresponding Articles 163 and 164, the Court answered affirmatively and confirmed that even a non - member of the Parliament could be appointed to the extremely important position of the Prime Minister of the nation.
Apart from the above case, a writ petition was filed by Dr. Janak Raj Jai on the ground that Article 75(5) mentions the word “Minister” and not Prime Minister and thus a Prime Minister could not be appointed by the ambit of the said Article. This was held to be untrue by the Court and the Court concluded by saying that the Constitution did not make any distinction between the Prime Minister and other Ministers and that the Article covered the appointment of the Prime Minister too. Based on this reasoning, the Court dismissed the petition.
CONCLUSION From the above-mentioned decisions taken by various Courts, it has become crystal clear that the Governor can appoint someone who is not a member of either of the house of the State Legislature as the Minister which includes the Chief Minister, and that the President can appoint one as the Prime Minister who is not a member of either of the house of the Parliament.