Two important questions relating to the interpretation of provisions of the Constitution namely whether for being a Prime Minister of the country, the person concerned should be a Member of the Lok Sabha or for being a Chief Minister of a State the person concerned should be a Member of the State Legislative Assembly merits consideration by the Supreme Court. An analysis of the relevant provisions of the Constitution indicates that for being eligible to be a Prime Minister, an individual concerned should be a Member of the Lok Sabha and a person to be a Chief Minister of a State, must be a Member of the Legislative Assembly of the State concerned. The relevant articles of the Constitution which requires interpretation is Article 75 in respect of Prime Minister and Article 164 which is similarly worded regarding the appointment of Chief Minister.
Clause (5) of Article 75 provides that a minister who for a period of six consecutive months is not a Member of either House of Parliament shall at the expiration of that period cease to be a Minister. Clause (4) of Article 164 of the Constitution is exactly similarly worded in so far it relates to the minister of a State. It reads: ?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.? In the first instance, the question is whether the word minister used in clause (5) of Article 75 and clause (4) of Article 164 includes Prime Minister or the Chief Minister of the State?
This question first came up before the Allahabad High Court in the case of KN Singh. In the said case, the petitioner therein had challenged the appointment of KN Singh as the Chief Minister of Uttar Pradesh without being a Member of the Legislature. The petitioner therein conceded that the word minister under clause (4) of Article 164 includes Chief Minister. Consequently, the Court held that a person can be appointed as Chief Minister even if he is not a Member of the Legislature but he should get elected to the Legislature within a period of six months. Thereafter, after nearly 28 years, similar question was raised in the case of HD Deve Gowda when he was appointed as Prime Minister of the country though he was not a Member of either House of the Parliament. A two judge bench of the Supreme Court comprising of the then Chief Justice of India and another judge held that as a person can be a minister for a period of six months without being a Member of the Legislature, the same principle applies to the office of the Prime Minister and upheld the appointment. This case which involved the interpretation of a very very important provision of the Constitution ought to have been referred to a bench comprising of minimum number of five judges as is mandatory under Article 145(3) of the Constitution. Neither the parties nor the Court applied their minds to this important constitutional question. Whatever that may be, the fact remains that the two judges bench held that as a person who is not a Member of either House of the Parliament can be a minister in the Centre for six months, a non-Member can be appointed as Prime Minister and that the word minister includes Prime Minister, the appointment of HD Deve Gowda as Prime Minister was upheld.
This very important constitutional question has been raised in a writ petition filed by Adhivakta Parishad, an All India Association of Advocates along with 13 Senior Advocates questioning the correctness of the earlier decision of the Supreme Court in HD Deve Gowda'scase while challenging the appointment of Bhupendra Singh Huda as the Chief Minister of Haryana, when he was not a Member of the State Legislature. The two judges bench before whom the matter came up, referred the matter to a larger bench having regard to the fact that the main plea raised in the petition by the petitioners was that the judgment in HD Deve Gowda'scase requires reconsideration. Accordingly, the matter came up before a three judge bench presided over by the Chief Justice of India and two other judges. The matter has been admitted and is pending consideration.
The important question raised in the petition was that the word minister used in clause (5) of Article 75 and clause (4) of Article 74 does not include Prime Minister or Chief Minister as the case may be, for the reason that if in a council of ministers one or two ministers are not Members of the Legislature and they are not elected within six months, all that happens is that they will cease to be ministers after six months, but in a case where the Chief Minister is not a Member of the Legislature and is not elected within a period of six months, the consequences will be serious and the entire ministry collapses, resulting in even all the elected Members who are ministers going out of office. This clear distinction between the minister/Chief Minister/Prime Minister neither has been raised nor considered by the Supreme Court. Thus, this is a live issue pending before the Supreme Court.
Another question which has now become a matter for public debate is whether a Member of the Rajya Sabha can be appointed as a Prime Minister or a Member of the Legislative Council can be appointed as a Chief Minister in a State. The clearest implication available from the provisions of the Constitution itself is that he is not eligible. The relevant provision which implies this distinction is Article 75(3), which reads that ?the council of minister shall be collectively responsible to the House of People.? Similarly Article 164 (2) reads that ?the council of ministers shall be collectively responsible for the Legislative Assembly of the State.? A comparison of these two clauses along with clause (5) of Article 75 and clause (4) of Article 164 clearly indicates that a distinction has been made by the provisions of the Constitution itself.
Whereas clause (5) of Article 75 states that a person can be a minister for a period of six months, states that he should within that period become a Member of the Parliament which means either the Lok Sabha or the Rajya Sabha. Article 164(4) is similarly worded and states that a non-Member minister in the State should become a member of either of the two Houses within six months. This differentiation made in the two clauses of Article 75 unmistakbly implies that a person who is not a Member of either the Lok Sabha or the Rajya Sabha can be a minister for a period of six months and further an elected Member of either House of People or the Rajya Sabha can be a Central Minister. However, for being a Prime Minister he should be a Member of Lok Sabha as indicated in clause (2) of Article 75 which provided that the Prime Minister and his council of ministers are to be responsible to the House of People. As by and large we are following the British pattern of Parliamentary system, it is appropriate to refer to the well established constitutional convention in Britain according to which only a Member of the House of Commons is eligible to be the Prime Minister. Similarly, the difference in the wording between clause (2) of Article 164 and clause (4) of Article 164 clearly indicates that a person who is a Member of the Legislative Assembly or the Legislative Council of the State can be a Minister. However, for being a Chief Minister, he should be a Member of the Legislative Assembly, as the council of ministers headed by the Chief Minister and his council of ministers are to be responsible to the Legislative Assembly and not to the Legislative Council. This difference of vital importance has been lost sight off. Further, any practice or precedent which is on account of mistaken understanding or wrong interpretation of the provisions of the Constitution cannot be taken as the law of the land which would mean that ?once a mistake always a mistake? which is not permissible in interpreting the Constitution. Whenever the question arises specifically, the matter is required to be considered or reconsidered by a Constitution Bench of the Supreme Court. This question has to be decided purely on the principle on which the Constitution has to be interpreted and has nothing to do with the eligibility of an individual to become a Chief Minister or Prime Minister. This Article should not be misunderstood as directed against the present Prime Minister Manmohan Singh, whom I hold in highest esteem, as the consideration of this question is necessary as the Constitution has to hold the field for all times to come.
(The writer is a Member of the Parliament (Rajya Sabha), Former Chief Justice of Punjab and Haryana High Court and former Governor of Jharkhand and Bihar.)