A S.P. ANAND, INDORE

v.

H.D. DEVE GOWDA AND ORS.

NOVEMBER 6, 1996

B (A.M. AHMADI CJ. AND SUJATA V. MANOHAR, J.]

Constitution of India-Articles 74 and 75 (5; 163 and 164(4)­

Appointment of .a non-member of either House of Parliament/State

Legislature as Minister

in Central/State Cabinet including that as

Prime

Minister/Chief Minister-Appointment Vf!lidfor a period of six consecutive

C months-If during that period the person so appointed is not elected to

either House

of Parliament/State Legislature, appointment to cease.

Article

75-Appointment of a non-member of either House of

Parliament as

Prime Minister-Appointment valid as long as the appointee

commands support and confidence

of the House-Once appointed, the

D

Prime Minister and his Council of Ministers become collectively answerable

to the

House-British convention that the

Prime Minister should be a

member

of either House, preferably the House of Commons, is not in tune

without Constitutional

Scheme or recognised practice.

Articles

32, 136-Public Interest Litigations-Expousing a public

E cause and invoking Court 'sjurisdiction seeking waiver of locus standi rule­

Not to be drafted in a casual and cavalier fashion-To be only drafted by

persons having expert knowledge

in the field after proper research-Casual

approach to consider decisions

of

Supreme Court not to be countenanced.

F Public Interest Litigations-Withdrawal thereof only with permission

of the Court-Decision to be guided by considerations of public interest so

as not to result in the abuse of the process of law-On facts, in the present

case, withdrawal was allowed as the same question was raised,

for

determination in different Courts.

G The

Petitioner, by means of a public interest litigation under

Article 32

of the Constitution has challenged the appointment of

Shri

H.D. Deve Gowda, the then Prime Minister of India on the ground

that he was not a member

of either House of

Parliament and therefore

was not eligible

to be so appointed by the

President of India, The

Petitioner inter alia prayed for an appropriate writ of this Court in

H exercise of its powers for quashing of the said appointment alleging

486

S.P. ANAND v. H. D. DEVE GOWDA 487

that it was violative-of Articles 14, 21 and 75 of the Constitution. The A

said appointment of the then Prime Minister was also challenged in

writ petitions more or less on the same grounds in the High Courts of

Delhi and Calcutta which were duly dismissed

by the High Courts.

Dismissing the petition, this Court

HELD:

1.1. A comparative study of Art. 75(5) and Art. 164(4)

clearly shows that a person who is not a member of either House of

Parliament or of either House of

State Legislature can be appointed

a Minister

in Central Cabinet (which would include a Prime Minister)

or a Minister in the

State Cabinet (which would include a Chief

B

Minister) as the case may be. 1492-F] C

The provisions in Articles 74 and 75 deal with the appointment

of the Council of Ministers with the Prime Minister at its head to aid

and advice the President. The provisions contained

in Articles 164

and 165 which are also similar deal with the appointment of the

Council

of Ministers with the Chief Minister at its head to aid and D

advise the Governor in exercise of its functions. It is evident that the

Constitution-makers desired to permit such appointment for a period

of 6 consecutive

months_ and if during the said period he was not

elected to either House,

he would cease to be a Minister.

1491 CDI

No material change has been brought about in the legal position E

by reason of amendment of Article 173 (a) of the Constitution (the

corresponding provision

in

regard to Parliament is Art. 84 (a) ).

Har Sharan Verma v. Tribhuvan Narain Singh CM, UP, 11971] 1

SCC 616 Har Sharan Verma v. State of UP., 1198512 SCC 48 and Har

Sharan Verma v. UO.l, [19871 Supp. SCC 310, relied on. F

1.2. It cannot be said that if a person who is not a member of

the House is chosen as Prime Minister, national interest would be

jeopardised or that it would run a great risk. Even if a person is not

a member of the House,

if he has the support and confidence of the G

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.

1498 D-FJ

As envisaged by Article 75(1) the I.' resident has to act in accordance H

488 SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.

A 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

People. Therefore, even though a Prime Minister is not a member of

8 either House of Parliament, once he is appointed he becomes answerable

to the House and so also his Ministers and the principle of collective

responsibility governs the democratic process. [497 GH, 498-Cf

c

Halsbury's Laws of England (3rd Edn) page 347 para 745,

referred

to.

1.3. The

English convention that the Prime Minister should be a

member of either House, preferably the House of Commons has neither

been a recognised practice

in our country nor is in tune with our

Constitutional scheme since our Constitution permits a non-member

to

br appointed a Chief Minister or a Prime Minister for a short

D duration of six months. That is why in such cases when there is a

doubt in the ;nind of the President, he normally asks the person

appointed to seek a vote

of confidence of the House of

People within

a

few days of his appointment. 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

E Ministers. [498 F-H)

2.1. A petition challenging the appointment to the high office of

the Prime Minister of this country should not be drafted in a cavalier

fashion betraying lack of study, research and seriousness. Those who

invoke this Court's jurisdiction seeking a waiver

of locus standi rule

F must exercise restraint in moving the Court by not

plunging in areas

wherein they are not well-ve"Sed. Such a litigant 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 rush to court without undertaking

a research, even if he

is

qualified and competeD.t to raise the issue. It

must also be borne in mind that no one has the right to the waiver of

G the locus standi rule and the court should permit it only when it is

satisfied that the carriage of proceedings is in the competent bands of

a person who

is genuinely concerned in

public interest and is not

moved

by any other extraneous considerations.

So also the court must

be careful to ensure that the process of the court is not sought to be

H abused by a person who desires to persist with his point of view, almost

S.P. ANANDv. H. D. DEVE GOWDA [AHMADI, CJ.] 489

carrying it to the point of obstinacy, by filing a series of petitions A

refusing to accept the Court's earlier decisions as concluding the point.

A casual approach tQ considered decisions of the court even by a person

well-versed in law would not be countenanced. (499 GH, 500 A-E]

Charan Lal Sahu v. Giani Zail Singh, (1984] I SCC 390 and

Mithilesh Kumar Sinha v. Returning Officer for Presidential Election, B

( 1993] Supp. 4 SCC 386, relied on.

2.2. In PIL cases, the petitioner is not entitled to withdraw his

petition at his sweet will unless the court sees reason to permit

withdrawal. Io granting the permission, the Court would be guided

by considerations

of

public interest and would also ensure that it C

does not result in abuse of the process of law. Courts must guard

against possibilities of such litigants settling the matters out of 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. In this case however withdrawal was not

allowed as the very D

same question was raised from court to court. [499 C-E]

CIV_IL ORIGINAL JURISDICTION : Wirt Petition (C) No. 850 of

1996.

Under Article 32 of the Constitution of India.

In-person for the Petitioner.

A.H. Desai, Additional Solicitor General and P. Parmeswaran for

the Respondents.

The Judgment

of the Court was delivered by :

AHMADI,

CJI. Can a person who is not a member of either House

E

F

of

Parliament be sworn in as the Prime Minister of India? That is the main

question

of public important that the petitioner has raised in this petition G

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. Shanker Dayal Sharma, the third

respondent, committed a grave and serious Constitutional error in swearing

H

490 SUPREME COURT REPORTS [1996] SUPP.8 S.C.R.

A 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

B League in Lok Sabha (without naming the individual) as respondents 2, 4

and 5 respectively.

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

C the affirmative on a true interpretation of Articles 163 and 164 of the

Constitution which, in material particulars, correspond 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

D 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(4) provides that a Minister who for any period of

E six consecutive months is not a member of the Legislature of the

State

shall at the expiration of that period, cease to be 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

F re-elected or otherwise, must vacate office. Interpreting the said clause in

the context of Article 163 and other clauses 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 plain thrust of the said provision by confining

it to cases where a person being a member of the Legislature and a Minister,

G for some reason, loses his seat in the

State. Accordingly, the decision of

the High Court was affirmed. See Har Sharan Verma v. Shri Tribhuvan

Narain Singh, Chief Minister, U.P. and Another, [1971} 1 SCC 616.

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

H even though he was not a member of either House of the State Legislature.

S.P. ANAND v. H. D. DEVE GOWDA [AHMADI, CJ.] 491

He contended that the decision rendered by this Court in the case

of

Shri A

T.N. Singh was not good law since the Court had overlooked the amendment

of Article l 73(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

ofintroducing 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 B

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 India shall be eligible for membership the Legislature.

The Court further pointed out that clause (4) of Article 164 of the

Constitution provides that a Minister (which includes a Chief Minister C

also) who, for any period of six consecutive 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 Legisture could also be appointed by

the Governor as the Minister (which includes the

Chief Minister) for a

period not exceeding six consecutive months. The Court, therefore, did

D

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 Shri

T.N. Singh 's case (supra). This

decision is reported as

Har Sharan Verma v. State of

U.P., [1985] 2 SCC

48.

E

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.

Spuming the challenge, this court held that to appoint a non-member of

the Parliament as a Minister did not militate against the constitutional F

mechanism nor did it militate against the democratic principles embodied

in

the Constitutfon.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 speak in, and otherwise

to take part

in the proceedings of, either House, in joint sitting of the G

Houses, 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

Sharar

Verma v. Union of India and Another, [1987] Suppl. SCC 310. H

492 SUPREME COURT REPORTS (1996] SUPP. 8 S.C.R.

A We may now refer to two decisions rendered by the High Courts 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 date he was sworn-in by the

B President of India 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 Articles

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

C Minister." In other words that High Court found that the Constitution did

not make any distinction between the Prime Minister and other Ministers.

The High Court dismissed the petition.

In the Calcutta High Court C.0. No.1336 (w) of 1996 was filed by

one Ashok Sen Gupta, a Senior Advocate, challenging the appointment of

D Shri H.D. Deve Gowda as the Prime Minister of India on the ground that

he was not eligible for appointment as he was not a member of either

House

of Parliament. The learned

Single Judge of the High Court in a

well considered Judgment held that Article 75(5)

of the Constitution permits

the President

of Ind.ia to appoint a person who is not a member of either

House

of Parliament as a Minister, including a

Prime Minister subject to

E the possibility of his commanding the support of the majority of members

of the Lok-Sabha. On this line of reasoning the petition was dismissed in

Limi.ni.

From the aforesaid three decisions of this Court and the High Courts

it becomes clear that a person who is not a member

of either House of

F Parliament or of either House of a

State Legislature can be appointed a

Minister

in the Central Cabinet (which would include a

Prime Minister)

or a Minister in the State Cabinet (which would include a Chief Minister),

as the case may be. But the p~titioner herein remains not satisfied.

The petitioner who argued the case

in person with great passion,

G zeal and emotion, claiming to be concerned about the survival of the

democratic process and the pristine glory

of our constitutional scheme,

submitted that

if a person who is not the elected representative of the

people

of the country and in whom the people have not placed confidence,

is allowed to occupy the high office of the

Prime Minister on whom would

H rest the responsibility of governing the Nation during peace and war (God

S.P. ANAND v. H. D. DEVE GOWDA [AHMADI, CJ.] 493

forbid), it would be talcing a great risk which the country can ill afford to A

talce and, therefore, we should so construe the relevant provisions of the

Constitution

as would relieve the country of such a risk. When his attention

was drawn to the case law aforementioned

he stated that those decisions

were old and needed to be reconsidered

in the changed circumstances. He

submitted his submissions in writing which are by and large a repetition

of the averments in the petition. B

We cannot but observe that the averments in the petition are of a

rambling nature and lack cohesion.

It is regrettable that a petition

challenging the appointment to the high office

of the

Prime Minister of

this country should have been drafted in such a cavalier fashion betraying

lack

of study, research and seriousness. The petition abounds in casual and C

irrelevant averrnents ranging from cases on freedom of speech to fraternity,

from judicial independence to judicial review, from civil code to cow

slaughter and so on and so forth.

Jn fairness to the petitioner we must state

that he desired to refer to cases on these subjects but

we did not permit

him as we thought it would be a sheer waste of public time. We, therefore,

asked him to confine himself to the principal issue, namely, whether a

D

person who is not a member of either House of

Parliament can be appointed

a Prime Minister. Even on this point his submissions were more in the

nature

of empty rhetoric than of substance. Jn fact on reading the petition

and his written submissions, the words

of Chandrachud, C.J in Mithilesh

Kumar Sinha, etc.

v. Returning

Officer for Presidential Election and Ors,

etc., [1992] Supp. I SCR 651 come to mind: E

"It is regrettable that election petitions challenging the election

to the high office

of the

President of India should be filed in

a fashion as cavalier as the one which characterises these two

petitions. The petitions have an extempore appearance and

not even a second look, leave alone a second thought,

F

appears to have been given to the manner of drafting these

petitions or to the contentions raised therein.

In· order to

discourage the filing

of such petitions, we would have been

justified

in passing a heavy order of costs against the two

petitioners."

In order to appreciate the contention raised in this petition, and to

determine

ifthe aforesaid decision on which the learned Attorney General

relied has any bearing

on the point at issue in the present petition, it would

be advantageous to read Articles 74 and

75 in juxtaposition with Articles

163 and 164 of the Constitution:

G

H

494 SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.

A 74. Council of Ministers to

aide and ac!vise President --­

(I) There shall be a Counci I of

Ministers with the Prime

Minister at the head to aid and

advise the President who shall,

B in the exercise of his functions,

act in accordance with such

advice:

[Provided that the President

C may require the Council of

Ministers to reconsider such

advice, either generally or

otherwise, and the President

shall act in accordance with the

D advice tendered after such

reconsideration.]

(2} The question whether any,

and if so what, advice was

E tendered by Ministers to the

President shall not be inquired

into in any court.

75. Other provisions as to

F Ministers.----(!) The

Prime

Minister shall be appointed by

the President and· the

other Ministers shall be

appointed by the President on

G the advice of the Prime

Ministers.

(2) The Ministers shall hold

office during the pleasure

of the

H

President.

163. Council of Ministers to aid

and advise Governor.--(!) There

shall be a Council

of Ministers

with the

Chief Minister at the

head to aid and advise the

Governor in the exercise of his

functions, except in so far as he

is by or under this Constitution

required

to exercise his functions

or any

of them in his discretion.

(2)

If any question arises whether

any matter

is or is not a matter

as respects which the Governor

is by or under this Constitution

required to act in his discretion,

the decision

of the Governor in

his discretion shall be final, and

the validity

of anything done by

the Governor

shall not be called

in question on the ground that he

ought or ought not to have acted

in his discretion.

(3) The question whether any,

and if so what, advice was

tendered by Ministers to the

Governor shall not be inquired

into in any court.

164.

Other provisions as to

Ministers.---( I) The Chief

Minister shall be appointed by

the Governor and the other

Ministers shall be appointed by

the Governor on the advice

of the

Chief Minister, and the Ministers.

shall hold office during the

pleasure of the Governor:

S.P. ANAND v. H. D. DEVE GOWDA (AHMADI, CJ.] 495

(3) The Council of Ministers

shall be collectively responsible

to the House

of the

People.

(4) Before a Minister enters upon

his

office, the

President shall

administer to him the oaths

of office and of secrecy

according to the forms set out

for

the purpose in the Third

Schedule.

(5) A Minister who for any

period of six consecutive months

is not a member of either House

of

Par! iament shall at the

expiration of that period cease to

be a Minister.

( 6) The salaries and allowances

of Ministers shall be such as

Parliament may from time to

time by law determine and, until

Parliament so determines, shall

be as

specified in the

Second

Schedule.

Provided that in the States ofBihar, A

Madhya Pradesh and Orissa, there

shall be a Minister in charge

of

tribal welfare who may in addition

be

in charge of the welfare of the

Scheduled Castes and backward

classes or any other work.

B

(2) The Council of Ministers shall

be collectively responsible to the

Legislative Assembly

of the

State.

(3) Before a Minister enters upon C

his office, the Governor shall

administer to him the oaths of office

and

of secrecy according to the

forms set out for the purpose

in the

Third

Schedule.

(4) A Minister who for MY period D

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.

(5) The salaries and allowances

of E

Ministers shall be such as the

Legislature

of the

State may from

time to time

by law determine and,

until the Legislature

of the

State so

determines, shall

be as specified in F

the

Second Schedule.

When we compare Articles 74 and 75 which Articles 163 and 164,

the first point of difference is that while the former deal with the President

and the.Prime Minister, the latter deal with the Governor and the Chief

Minister, Article 74(1) and Article 163(1) are substantially the same except

G

that the sentence beginning with 'except' and ending with 'discretion',

special to the Governor's function,

is not to be found in Article 74(1). The

proviso to Article 74(1) which grants a special privilege to the

President is

not to be found in Article 163(1) whereas clause (2) of Article 163 is not

to be fourd in Article 74, clause (2) to Article 163 is a corollary to the

exception clause in Article 163(1) and has no relevance to the issue on

H

496 SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.

A hand. Article 74(2) and Article 163(3) are verbatim the same.

Article 75(1) and (2) are identical

to Article 164(1)

exceµt that in

the case of the latter, the two clauses have been combined into one. The

proviso to Article 164(1) which

is special to States, is not to be found in

Article 75. The rest of the Clauses of the two Articles are identical except

B for consequentiai changes.

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

C Parliament, he would cease to be a Minister. This becomes clear if one

were to read the debates

of the Constituent Assembly (the draft Articles

were 62 and 144 for the present Articles

75 and 164). Precisely on the

ground that permitting such persons to be appointed Ministers at the

Union

or State levels would "cut at the very root of democracy", an amendment

was moved to provide:"No person should be appointed a Minister unless

D at the time of his appointment, he is elected member of the House:" which

amendment was spurned

by Dr. Ambedkar in the following words:

E

F

G

H

"Now with regard to the first point,. namely that no person

shall be entitled to be appointed a Minister unless

he is at the

time

of his appointment an elected member of the House, I

think it forgets to take into consideration certain important

matters which cannot be overlooked. First

is this and it is

perfectly possible to imagine that person who is otherwise

competent to hold the post

of a Minister has been defeated in

a constitutency for some reason and which, although it may

be perfectly good, might have annoyed the constituency and

he might have incurred the displeasure of that particular

constituency. It

is not a reason why a member so competent

as that should not be permitted to be appointed a member

of·

the Cabinet on the assumption that he shall be able to get

himself elected from the same constituency or from another

constituency. After all the privileges that he

is permitted is a

privilege that extends only to six months. It does not confer

a right on that individual to sit

in the House being elected at

all. My second submission

is this that the fact that a nominated

Minister

is a member of the Cabinet does not either violate

the principle

of collective responsibility nor does it violate

the principle

of confidence because he is a member of the

S.P. ANAND v. H. D. DEVE GOWDA [AHMADI, CJ.] 497

cabinet

if he is prepared to accept the policy of the

Cabinet A

stands part of the Cabinet and resigns with the Cabinet when

he ceases to have the confidence of the House, his

membership of the Cabinet does not in any way cause any

inconvenience or breach

of the fundamental principles on

which parliamentary government is based. Therefore, this

qualification in my judgment

is quite

unnecessary." B

At the end of the discussion, the Constituent Assembly rejected the proposed

amendment. Furthermore, as pointed out in the decision

of this Court,

[1987]

Supp. SCC 310, such an appointment does not militate against the

democratic principles embodied

in our Constitution. With respect, we agree.

The petitioner then invited our attention to Halsbury' s Laws of

England (Third Edition) page 347 wherein at para 745 it is

stated:" By

conventional usage the Prime Minister is invariably a member of either

House

of Commons or House of

Lords." footnote (i) proceeds to add that

the person selected

is preferably to be a member of the House of Commons.

c

The petitioner further urged that even if the

Constitution is construed-to D

permit a person who is not a member of either House of Parliament to be

appointed a Minister for six months, there is nothing in Article 75(5) to

suggest that he can be appointed the Prime Minister of the country. He

urged that the status of the Prime Minister is distinct from that ofa Minister

and, therefore,

it is essential that a person who occupies the high position

of a

Prime Minister should be an elected representative of the people. This E

submission overlooks the fact that 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. F

Now Article 75(1) envisages a Council of Ministers with the Prime

Ministor at the head to aid and advise the President, and the latter is expected

to act in accordance with such advice but ifhe has any reservations he may

require the Council of Ministers to reconsider such advice. Thus, the

President has to act in accordance with the advice of the Council of Ministers G

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 H

498 SUPREMECOURTREPORT5 [1996] SUPP. 8 S.C.R.

A 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 sa7 that the Prime Minister does not enjoy a special status; he does

as the he~d of the Council of Ministers but the responsibility of the Council

of Minislers to the House of the People is collective. Besides, the caption

B of article 75 as a whole is "other provisions as to Ministers." No separate

provision

is to be found dealing with the appointment of the Prime Minister

as such. Therefore, even though the Prime Minister is appointed by the President after he is chosen by such number of members of the House of

the people as would ensure that he has the confidence of the House and

would be able to command the support of the majority, and the Ministers

C are appointed on the advice of the Prime Minister, the entire Council of

Ministers is made collectively responsible to the House and that ensures

the smooth functioning of the democratic machinery. If any Minister does -

not agree with the majcrity decision of the Council of Ministers, his option

is to resign or accept the majority decision. If he does not, the Prime

Minister would drop

him from his cabinet and thus ensure collective

D responsibility. Therefore, even though a Prime Minister is not a member

of either House of Parliament, once he is appointed 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

E norms of democracy and the requirement of being accountable to the House

would ensure the smooth functioning of the democratic process. We,

therefore, find it difficult to subscribe to the petitioner's contention that

if a person who is not a member of the House is chose as Prime Minister,

national interest

would be jeopardised or that we would be running a great

risk. The English convention that the Prime Minister should be a member

F of either House, preferably House of

Commons, is not our constitutional

scheme since our Constitution clearly permits a non-member to be

appointed a Chief Minister or a Prime Minister for a shori duration of six

months. That is why in such cases when there is any doubt in the mind of

the President, he normally asks the person appointed to seek a vote of

G confidence of the House of the People within a few days of his appointment.

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 long-standing

H accepted practice or by agreement in areas where the law is silent and such

S.P. ANAND v. H. D. DEVE GOWDA [AHMADI, CJ.] 499

a convention would not breach the law but fill the gap.

If we go by that A

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.June with our

constitutional scheme nor has it been a recognised practice

in our country. B

The petitioner had contended before this Court when his petition

was called on for hearing on 30.7.1996 that

he had

filed a similar petition

bearing No.774

of 1996 in the Madhya

Pradesh High Court and that the

High Court

had ordered notice to issue exercising jurisdiction under Article

226

of the Constitution. He sought permission to withdraw his petition. C

Here we must mention 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

nrocess oflaw. Courts must guard against possibilities

of such litigants settling the matters out of the court to their advantage and D

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 E

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 F

the petition and decided to settle the issue of law one way or the other,

which

we do by this decision.

Before we part, we cannot help mentioning

that on issues of

constitutional laws, litigants who can lay no claim to have expert knowledge

in t.hat field should refrain from filing petitions, which if we may say so, G

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 Court's jurisdiction seeking a waiver

of the locus

standi rule must exercise restraint in moving the Court by not plunging in H

500 SUPREME COURT REPORTS [1996) SUPP. 8 S.C.R.

A 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 rush to court without undertaking a research, even if

he is quali_fied or competent to raise the issue. Besides, it must be

B 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, it 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

C 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 court's earlier decisions as concluding the point. We

D say this because when we drew the attention of the petitioner to earlier

decisions of this Court, he brushed them aside, without so much as showing

willingness to deal with them and without giving them a second look, as

having become state and irrelevant by passage of time and challenged

their correctness

on the specious plea that they needed reconsideration.

Except for saying that they needed reconsideration he had no answer to

E the correctness of the decisions.

Such a casual approach to considered

decisions of this Court even by a person well-versed in law would not be

countenanced. Instead, as pointed out earlier, he referred to decisions having

no bearing on the question, like the decisions on cow slaughter cases,

freedom of speech and expression, uniform civil code, etc. we need say no

more except to point out that indiscriminate use of this important lever of

F public interest litigation would blunt the lever itself.

We would have ordered the petitioner to pay the cost of this petition

but we refrain from doing so on this occasion in the hope that he will

exercise restraint in future, failing which he may in a similar or like case

be visited with an order of cost. With these observations we dismiss the

G petition. The interim order staying proceedings pending elsewhere shall

stand vacated with a direction that they shall be disposed of in the light

hereof.

R.D. Petition dismissed.