Prime Minister Manmohan Singh gave us a lame excuse on Tuesday for his not contesting the Lok Sabha election.
His hypocrisy apart, this stance of his is a direct repudiation of the Founding Father's original intent in the Constitution, evidence of which can be found in multiple instances within the Constituent Assembly Debates.
The most direct reference to this question is posed by Professor Shibban lal Saxena on 31st December 1948 when the Constituent Assembly debated Article 62 of the Draft Constitution.
I do feel that unless everybody who is a Minister has got the confidence of the electorate, he should not be appointed as one.
Every Minister who is a memberof a Cabinet must seek open election and if he is returned,only then he should be appointed a Minister
Probably, this was the purpose of my honourable Friend Dr.Ambedkar and what he meant was that if a Minister does not become a member of either House within six months, he ceasesto be a Minister. By this, he surely meant that he should beelected and I would very much welcome it from him if that is his purpose
In response Ambedkar speaking on the same day makes this point about "Ministers"
it is perfectly possible to imagine that a person who is otherwise competent to hold the post of a Minister has been defeated in aconstituency for some reason which, although it may beperfectly 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 be not permitted to be appointed a member of the Cabinet on the assumption that he shall be able to get himself elected either from the same constituency or fromanother constituency.
After all the privilege that is permitted is a privilege that extends only for six months.Itdoes not confer a right to that individual to sit in the House without being elected at all.
It is important to note however that the Indian Constitution makes a clear and unambiguous distinction between a "Minister" and the "Prime Minister".
Ambedkar in fact had clarified this in the context of the same issue on the very previous day, 30th December 1948.
I do not understand why it is undemocratic to permit a Prime Minister, who is chosen by the people, to appoint Ministers from a House which is also chosen on adult suffrage, or by people who are chosen on the basis of adult suffrage, or by people who are chosen on thebasis of adult suffrage. I fail to understand why that system is undemocratic.
Not only is Ambedkar very clear on the original intent of the Founding Fathers that the Prime Minister must be someone who has been elected by the people, Ambedkar is also clear that "Direct Adult Suffrage" is the method by which such a Prime Minister can claim legitimacy as opposed to other "Ministers" who could be chosen by directly or indirectly.
The most unambiguous validation of this original intent comes a year later on 18th November 1949 when the Constituent Assembly was in its final phases of passing the Motion on the Draft that was to become the Constitution of India.
Gokulram Daulatram Bhatt had this to say on the method of electing the Prime Minister and President.
At one time however we had said that our President would be elected on the basis of adult franchise and we had as a matter of fact accepted in principle that proposal.
But later on we began to feel that this is not possible because on the one side Prime Minister would be elected by means of adult franchise while on the other the President would also be so elected and if any difference of opinion occurred in these two officials who had been elected by the same body of people it would be difficult to overcome those differences.
Therefore, we felt that reality and practical considerations demanded that we should give up our insistence on the direct election of the President and agreed for his being elected in some other way.
We agree to this because we felt that ourrepresentatives at the Centre and in the Provinces would be elected on the basis of adult franchise.
This should leave no one in doubt that the Founding Fathers who drafted the Indian Constitution intended the Prime Minister to have derived his legitimacy by being directly elected by the people through Adult Suffrage.
That the Founding Fathers did not choose to make this explicit in the text of the Constitution was simply because to them it was inconceivable that a perversity would be perpetrated on the Constitution where a Prime Minister would enjoy office for his entire 5 year term without getting elected directly by the people.
It is futile to expect someone like Congress President Sonia Gandhi who has never demonstrated any great understanding of the Constitution to show moral and intellectual leadership on this issue
But Dr. Manmohan Singh cannot be let off the hook on this one.
If he has any faith or conviction in the original intent of the Constitution as manifested in the remarks by Dr. B.R. Ambedkar and others, he must explain why he did not contest the Lok Sabha elections for the last 5 years and why he has no intention of doing so in 2009.
Constitution envisages only a Lok Sabha member as PM
By Justice Dr M Rama Jois March 22, 2009
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.
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's case 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's case 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.)