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| Jawaharlal Nehru - The first Prime Minister of India. |
At the outset, I
would like to make it clear that the Prime Minister is always appointed and
never elected in India. But, many people get confused and use the term ‘elected’.
It is for this purpose that I have included ‘elected’ in the title of this
Post.
Recently, India
witnessed Parliamentary elections and naturally, a great number of people got
curious as to how the government is formed and more importantly, how the head
of the government i.e. the Prime Minister is appointed. Let us understand some
of the provisions in this respect.
Constitutional
Provisions
Article 74
(1) states that there shall be a Council of Ministers with the Prime
Minister at the head to aid and advise the President. This implies two
things.
1.
Prime Minister is included within the ‘Council of Ministers’.
2. ‘At
the head’ clearly implies that Prime Minister is the head of the Council of
Ministers.
Article 75
(1) states that the Prime Minister shall be appointed by the President.
This is a carte blanche power given to the President. The President has
the power to appoint anyone as the Prime Minister. Thus, even a non-Member of
Parliament can also be appointed as the Prime Minister.
Article 75
(5) states that a Minister who for any 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. This supports the above-mentioned proposition
that a non-Member of Parliament can also be appointed as the Prime Minister.
However, such Prime Minister shall have to become a Member of Parliament before
the expiry of six months period.
Article 88
states that every Minister shall have the right to speak in, and otherwise to
take part in the proceedings of, either House, any joint sitting of the Houses,
and any committee of Parliament of which he may be named a member, but shall
not by virtue of this article be entitled to vote. Thus, a non-Member of
Parliament Prime Minister is not entitled to vote.
Article 352
(3) states that the President shall not issue a Proclamation of Emergency
without the consent of the Union Cabinet (that is to say, the Council
consisting of the Prime Minister and other Ministers of Cabinet rank appointed
under article 75). Thus, Article 352 (3) is very clear that Prime
Minister is a part of the Union Cabinet as well.
There are few
things that are clear by now.
1.
Prime Minister is the Head of the Council of Ministers.
2.
The President can appoint any person as the Prime Minister.
3.
A non-Member of Parliament Prime Minister shall have to become a Member of
Parliament within six months.
4.
A non-Member of Parliament is not entitled to vote in the Parliament.
5.
Prime Minister is an integral part of the Union Cabinet.
Parliamentary
Conventions and Best Practices
As stated above,
the President can appoint anyone as the Prime Minister. However, the President
must remember that the Council of Ministers is directly and collectively responsible to the Lok
Sabha [Article 75 (3)]. Therefore, only that person be appointed as
Prime Minister who in his best judgment be acceptable to the House. In case of
a clear Majority in Lok Sabha, there is no such difficulty. The
well-established parliamentary practice in this respect mandates that the
President has to invite the Leader of the Majority Party or Alliance to become
the Prime Minister.
But, in cases
where no single party or alliance commands majority in the House, the role of
the President in appointing the Prime Minister becomes complicated. Again,
the established parliamentary convention in this respect says that the
President has to call the leader of the single largest party or alliance first
and ask him/her to seek a confidence vote in the House. If he/she is able to
prove his majority, he can be appointed as the Prime Minister.
Constituent
Assembly on the Appointment of Prime Minister
This is what Dr.
Ambedkar had to say in the Constituent Assembly on the appointment of a
non-Member of Parliament as a Minister –
“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 a person who is otherwise
competent to hold the post of a Minister has been defeated in a constituency
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 cabinet if
he is prepared to accept the policy of the Cabinet, 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.”
Supreme Court
on Appointment of Prime Minister
In the case of S.P.
Anand v. H.D. Deve Gowda[1], the Petitioner contended
that if a person who is not a member of the House is chosen as Prime Minister,
national interest would be jeopardised and the country would run into a great
risk. The petitioner also cited the English convention that the Prime Minister
should be a member of either House, preferably House of Commons. However, the
court said that:
“This 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 short 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
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.
The Court also
said 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. Thus the court held that the British Convention to which the
petitioner referred to is neither in tune with our constitutional scheme nor
has it been a recognised practice in our country.
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