Ashok Sen Gupta v. Union of India — 1996 DIGILAW 272 (CAL)

Judgment The petitioner, who is a Senior Advocate, has prayed for a writ of quo-warranto challenging the appointment of the respondent No.2 as Prima Minister and has also sought a declaration from the Court that a person who is not a member of either of the two Houses of Parliament is not eligible for appointment as Prime Minister. He is supported by Mr.P. N. Chatterjee also a Senior Advocate who has, at his instance, been added as a party. 2. The last election to the Lok Sabha was held in May, 1996. The result of the election gave no party an over ali majority. Of the 530 Members of the Lok Sabha, 195 Members belong to the Bharatiya Janata Party (BJP). 136 Members belong to Congress (I) and the remaining Members belong to diverse paries. Initially the President appointed the Leader of the BJP namely, Sri Atal Behari Vajpayee as the Prime Minister of India. Sri Vajpyee was called upon by the President to prove that he was supported by the majority of the members in the House. Sri Vajpayee however resigned from the office of the Prime Ministership. About 163 Members belonging to diverse parties then formed a coalition and chose the respondent No.2 as their leader. On 29th May, 1996, the President of India appointed the respondent No. 2 as the Prime Minister and asked him to form the Government. The respondent No.2 took his oath of office on 1st June, 1996. This writ application was filed on 3rd June, 1996. Since that date on 12th June, 1996 the respondent No. 2 has been able to establish his majority support in the House. 3. The petitioners have emphasised that neither of them belong to a political party and had raised the issue regarding the respondent No. 2's appointment out of altruistic motives. It is submitted that the President could not appoint a person who is not an elected member of Parliament or at least a member of Parliament, as a Prime Minister. This according to the petitioners, was against the Constitution and Parliamentary convention. It was also submitted by the added pl9titioner that the President could not in any event call upon the respondent No. 2 to form the government without asking the Congress (I) which, after the BJP, was the largest party in Parliament. This according to the petitioners, was against the Constitution and Parliamentary convention. It was also submitted by the added pl9titioner that the President could not in any event call upon the respondent No. 2 to form the government without asking the Congress (I) which, after the BJP, was the largest party in Parliament. It is submitted by the petitioners that although the controversy would have a political fall out, the questions raised were constitutional ones which could be and in fact required to be determined by the Court. It may be noted at the outset that the Advocate General appearing for the respondents has not argued that the Court cannot decide the issue but has disputed this Court's territorial jurisdiction to do so. 4. The canvas on which the petitioners have argued their case is a broad one but ultimately the issue is limited to the construction of sub-Art. (5) of Art. 75 of the Constitution of India. 5. Article 75 of the Constitution reads as under. "75.(1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister. (2) The Ministers shall hold office during the pleasure of the President. (3) The Council of Ministers shall be collectively responsible to the House of 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 of. the Third Schedule. (5) 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. (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." 6. Article 75(5) clearly allows for a person who is not a Member of either House of Parliament to be a Minister for a period of 6 months. At the time of preparation of the Constitution by the Constituent Assembly, exhaustive debates were held with regard to Art. 62 (now replaced by Art. 75) and Art. 144 (now replaced by Art. 164). At the time of preparation of the Constitution by the Constituent Assembly, exhaustive debates were held with regard to Art. 62 (now replaced by Art. 75) and Art. 144 (now replaced by Art. 164). Both Articles were objected to because of the provision for persons not members of the Parliament/Legislature being appointed as Ministers. It was contended that this "cut at the very root of democracy". An apprehension was expressed that it would be possible for the whole Council of Ministers to be composed of nominated members: An amendment was accordingly proposed to the effect that only elected members could be appointed ministers. The amendment was negatived (Re: Art. 62: Constituent Assembly Debates Vol. VII page 1172 to 1174; 1182 to 1191: Re: Art. 144 Constituent Assembly Debates Vol. VIII page 505 to 521). 7. Dr. B. R. Ambedkar in opposing the amendment to Art. 62(5) said: "It does not confer a right to that individual to sit in the House without 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 if 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:' (Constituent Assembly Debates Vol. VII page• 1186) 8. There was thus a conscious intention to allow non-members of to be appointed Ministers. 9. This is also how Art. 75(5) has been judicially construed. In Harsharan Verma vs. Union of India & Anr., AIR 1987 SC 1969 the appointment of Sri Sitaram Kesari as Minister in the Central Cabinet was challenged on the ground that he was not a Member of either House of Parliament when he was appointed. 9. This is also how Art. 75(5) has been judicially construed. In Harsharan Verma vs. Union of India & Anr., AIR 1987 SC 1969 the appointment of Sri Sitaram Kesari as Minister in the Central Cabinet was challenged on the ground that he was not a Member of either House of Parliament when he was appointed. The Supreme Court observed: "The petitioner admits that in the thirty-seven years of constitutional regime in this country there have been several instances where a person has held the office as Minister either at the Centre or in the State (there are corresponding provisions for the State), not being a member of the appropriate Legislature at the time of appointment. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * To appoint a non-member of the Parliament as a Minister does not militate against the constitutional mechanism, we agree with the High Court that such an appointment does neither (sic) militate against the democratic principles. embodied in the Constitution." Incidentally as far as England is concerned: "...By convention, a Minister must be a Member of the House of Commons or the House of Lords; or, if not so at the time of appointment, must quickly be found a place in one or other house..." (See: "Parliament Functions, Practice & Procedure" by J.A.G. Griffith, Michael Rule with M.A. J. wheeler-Booth, 1989 Edition, page 20). 10. The petitioners seek to distinguish the decision in Sitaram Kasari's case (supra). According to the petitioners the word "Minister" used in Art. 75(5) should not be construed to include the word "Prime Minister". It is argued by the petitioners that there is a distinction between the status of a Prime Minister and a Minister both in the matter of appointment and removal. Special duties are also placed on the Prime Minister and he has a pre-eminent position in the Cabinet. Without the Prime Minister the government cannot be sustained. It is also submitted that if the word "Minister" is construed to include the Prime Minister this would be contrary 'to the' basic structure of the Constitution which envisages a democratic, representative and responsible government. Without the Prime Minister the government cannot be sustained. It is also submitted that if the word "Minister" is construed to include the Prime Minister this would be contrary 'to the' basic structure of the Constitution which envisages a democratic, representative and responsible government. It is submitted by the petitioners that even as a matter of interpretation Art. 75(5) refers to "a Minister" whereas the other sub-articles of Art. 75 refers to "Ministers" collectively. It is finally submitted that in any event the interpretation of the Article must be made in the background of the relevant legal history and in particular according to the conventions prevailing with regard to the appointment of Prime Ministers as on the date of the adoption of the .Constitution. According to the petitioner the British Convention is that the Prime Minister was invariably a member of Parliament when he is appointed. In India there has been only one exception to this Convention when Sri P. V. Narasimha Rao was appointed as a Prime Minister. Sri Rao was not a member of either of the Houses of Parliament at the time of his appointment. This solitary exception according to the petitioners, does not destroy the convention. 11. A strict construction of Art.75 supports the view that the words "Minister" used in Art. 75(5) includes the Prime Minister". The language of Art. 75(1) speaks of appointment of "other Ministers" apart from the Prime Minister. This would show that the Prime Minister is a Minister. The Prime Minister is part of the Council of Ministers under Art. 75(3). There is no separate provision for a Prime Minister being administered oaths of office or secrecy except Art. 75(4) nor is there any separate provision for the salary and allowances to be enjoyed by a Prime Minister except under Art. 75(6). This interpretation. is reinforced by the language of the heading of Art. 75 which reads "Other provisions as to Ministers". The appointment of Prime Minister being provided for in Art. 75(1) shows that the Prime Minister falls within the description of "Minister". 12. This interpretation. is reinforced by the language of the heading of Art. 75 which reads "Other provisions as to Ministers". The appointment of Prime Minister being provided for in Art. 75(1) shows that the Prime Minister falls within the description of "Minister". 12. The Advocate General who has appeared for the respondents is right in his submission that unless sub-Art. 5 of Art. 75 is construed to include the Prime Minister it may lead to absurd results as this would mean that there would be no qualification applicable for appointment of the Prime Minister and also that a Prime Minister may continue indefinitely. 13. Although the person appointed need not be a member of Parliament at the time of appointment this does not mean that the President may appoint anyone as Prime Minister. His discretion under Art. 75(1) is limited to choosing such a person (a) who can command the support of the majority of the members of the Lok Sabha; (b) who has the potentiality to be elected as a Member of Parliament within six months of his appointment in terms of Art. 75(5). Articles 84 and 102 lay down the qualifications and disqualifications respectively for membership of Parliament. The discretion of the President is fettered by these considerations. Both Arts. 84 and 104 prescribe that a member must be a citizen of India. The apprehension of the petitioners that the President may appoint a non-citizen is therefore unfounded. 14. The petitioners are right in their submission that the basic feature of the Indian Constitution is that it is a democratic system which functions on the basis of Cabinet Government according to the principles of collective responsibility. But the question is whether the appointment of a Prime Minister who is not an elected member of Parliament at the time of his or her appointment is contrary to these tenets. If not there is no reason not to construe the word "Minister" in Art. 75(5) to include the Prime Minister. 15. The Government of this Country does not rest on the Prime Minister but on the Council of Ministers. The Prime Minister is part of the Council of Ministers and the President acts with the aid and advice of the Council of Ministers [Art. 74(1)]. The requirements of democracy are met by the "paramount consideration" that they command the confidence of the House. The Prime Minister is part of the Council of Ministers and the President acts with the aid and advice of the Council of Ministers [Art. 74(1)]. The requirements of democracy are met by the "paramount consideration" that they command the confidence of the House. As was opined in Samsher Singh vs. State of Punjab & Anr., AIR 1974 SC 2192 , 2199, 2218: "The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions." 16. Despite the fact that the Prime Minister is appointed by the President and other Ministers are appointed by the President on his advice [Art. 75(1)], and even though he is .described as the "head" of the Council of Ministers [Art. 74(1)], and although the Prime Minister has some special duties to perform, nevertheless the Prime Minister remains in essence Minister in the Cabinet. His importance lies in the fact that he is the chosen leader of the party in government and the collective responsibility of the Cabinet is enforced through him. Collective, respnsibility, according to Grifith, Rule and Wheeler Booth (ibid). "as applied to Cabinet Ministers, means that each Minister accepts responsibility, for the decision of the whole Cabinet........ 17. Every minister is equally responsible for a Cabinet decision. The Prime Minister is not more responsible than the other Ministers. This being so the principle of collective responsibility cannot warrant any distinction being drawn between an ordinary minister and the Prime Minister at least in the matter of their appointment. 18. Every minister has to accept government policy or resign. It is to' effectively enforce this collective responsibility that the Prime Minister's office was at all retained by the Constituent Assembly. 19. This is clear from the Constituent Assembly Debates. Vol. No. VII at page 1144 the relevant extract whereof reads : "Amendment No. .1295. Prof. K. T. Shah (Bihar: General): Sir, I move: "That in clause (1) of Art. 61, the words 'with the Prime Minister at the head' be deleted". 20. This amendment was negatived, Dr. B. R. Ambedkar said: "I want to tell my friend Prof. K. T. Shah that his amendment would be absolutely fatal to the other principle which we want to enact, namely collective responsibility. 20. This amendment was negatived, Dr. B. R. Ambedkar said: "I want to tell my friend Prof. K. T. Shah that his amendment would be absolutely fatal to the other principle which we want to enact, namely collective responsibility. All Members of the House are very keen that the Cabinet should work on the basis of collective responsibility and all agree that that is a very sound principle. But I do not know how many Members of the House realise what exactly is the machinery by which collective responsibility is enforced. Obviously, there cannot be a statutory remedy. Supposing a Minister differed from other Members of the Cabinet, it would be hardly possible for the law to come in and to prosecute him for having committed a breach of what might be called' collective responsibility. Obviously, there cannot be a legal sanction for collective responsibility. The only sanction through which collective responsibility can be enforced is through the Prime Minister. In my judgment collective responsibility is enforced by the enforcement of two principles. One Principle is that no person shall be nominated to the Cabinet. except on the advice of the Prime Minister. Secondly, no person shall be retained as a member of the Cabinet if the Prime Minister says that he shall be dismissed. It is only when Members of the Cabinet both in the matter of their appointment as well as in the matter of their dismissal are placed under the Prime Minister, that it would be possible to realise our ideal of collective responsibility. I do not see any other means or any other way. of giving effect to that Principle. Supposing you have no Prime Minister; what would really happen ? What would happen is this every Minister will be subject to the control or influence of the President. It would be perfectly possible for the President who is not ad idem with a particular Cabinet, to deal with each Minister separately, singly, influence them and thereby cause disruption in the Cabinet. Such a thing is not impossible to imagine. Before collective responsibility was introduced in the' British Parliament you remember how the English King used to disrupt the British Cabinet. He had what was called a Party of King's Friends both in the Cabinet as well as in Parliament That sort of thing was put a stop to by collective responsibility. Such a thing is not impossible to imagine. Before collective responsibility was introduced in the' British Parliament you remember how the English King used to disrupt the British Cabinet. He had what was called a Party of King's Friends both in the Cabinet as well as in Parliament That sort of thing was put a stop to by collective responsibility. As I said, collective responsibility can be achieved only through the instrumentality of the Prime Minister. Therefore, the Prime Minister is really the keystone of the arch of the Cabinet and unless and until we create that office and endow that office with statutory authority to nominate and dismiss Ministers there can be no collective responsibility." (Constituent Assembly Debates, Vol. No. VII, page 1159) 21. Therefore what is required to be enquired into by the President in appointing a Prime Minister is whether the appointee would be able to control the members of his Cabinet, a Cabinet which would be responsible to the House and through it to the people. Such control is established by being chosen as a leader of the party in power. And if such leader is not a member of Parliament, he may still be appointed without violating either the norms of democracy or the Cabinet system of governance or the principles of collective responsibility. There is therefore no bar to interpreting Art. 75(5) to include the Prime Minister. 22. The view which has been expressed by me finds support in Constitutional and Administrative Law by Stanley De Smith and Rodney Brazier (New Edition) where at 'page 234 it is said: "The Prime Minister must be that person who is best able to command the support of a majority of members of the House; he is normally the leader of the majority party; the majority party in the House is identified by the party affiliations of the successful candidates in individual constituencies at a General Election, The Prime Minister forms a Government, the members of the Government must be or become members of one or other House." 23. I am also sustained by the views judicially expressed with regard to State Assembly elections and the appointment of the Chief Minister under Art. 164. Article 164 grants a similar "life" to a Minister of a State Legislature who is not a Member of either House. 24. I am also sustained by the views judicially expressed with regard to State Assembly elections and the appointment of the Chief Minister under Art. 164. Article 164 grants a similar "life" to a Minister of a State Legislature who is not a Member of either House. 24. The recognition of the parallel nature of the provisions relating to the ministers of the Legislative Assembly of a State with the ministers of the Lok Sabha at the Central and the equation of the officer of the Chief Minister for the purpose of Art. 164 with the Prime Minister under Art. 74(5) has been stated in paragraph 153 of Samsher Singh vs. State of Punjab & Anr. AIR 1974 SC 2192 , 2218 by the Supreme Court: "We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various Articles shall, by virtue of these provisions, exercise of their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister) restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the Head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step." 25. Then again in U.N. Rao vs. Indira Gandhi: AI R 1971 SC 1002 it was held: "The President has thus been made a formal or constitutional head of the executive and, the real executive powers are vested in the Minister or the Cabinet. The same provisions obtain in regard to the Government of States; the Governor or the Rajpramukh, as the case may be, occupies the position of the head of the executive in the State but it is virtually the Council of Ministers in each State that carries on the executive Government... " 26. The same provisions obtain in regard to the Government of States; the Governor or the Rajpramukh, as the case may be, occupies the position of the head of the executive in the State but it is virtually the Council of Ministers in each State that carries on the executive Government... " 26. The petitioners submit that such equation is not a valid one any more by reason of the amendment to Art. 74(1) by the Constitution (42nd Amendment) Act, 1976. This amendment does not touch on the question of the appointment of Ministers, but only obliges the President to act in accordance with the advice of the Council of Ministers. 27. In construing the provisions of Art. 164 as far as the appointment of a Chief Minister is concerned, the Supreme Court has clearly held that the Chief Minister deed not have to be a member of either House of the Legislature to be appointed as Chief Minister of a State. 28. The decision in Har Sharan Verma vs. Sri Tribhuvan Narayan Singh: AIR 1971 SC 1331 decided the scope of Art. 164(4). After considering the authorities on the subject the Supreme Court found that Art. 164(4) enabled the Governor to appoint a Chief Minister and ministers none of whom are members of the legislature provided of course, they fulfilled the further requirement of becoming a member of the legislature within a period of six months from the date of appointment. The Supreme Court observed: "The appellant says that if the interpretation put by the High Court is correct it would be possible for a Governor to appoint a Chief Minister and Ministers none of whom are Members of the State Legislature. He said that this could not have been contemplated. But if the Legislative Assembly of the State to whom this Council of Ministers would be collectively responsible endorses this unlikely Council of Ministers there is nothing in the Constitution which would make this appointment illegal" 29. Similarly in Har Sharan Verma vs. State of u.p. and Anr. AIR 1985 SC 282 , Mr. Verma challenged the appointment of Sri K. P. Tiwari as a Minister of the Government of Uttar Pradesh on the State Legislature. The challenge was negatived by the Supreme Court. Here also the Supreme Court expressly said that for the purpose of Art. 164(4) a Minister includes the Chief Minister also. 30. AIR 1985 SC 282 , Mr. Verma challenged the appointment of Sri K. P. Tiwari as a Minister of the Government of Uttar Pradesh on the State Legislature. The challenge was negatived by the Supreme Court. Here also the Supreme Court expressly said that for the purpose of Art. 164(4) a Minister includes the Chief Minister also. 30. The decision which is clearly on the point is Har Saran Verma vs. Chandra Bhan Gupta AIR 1962 All 301 . Mr. Gupta had contested the election to the Legislative Assembly of the State of Uttar Pradesh and lost. He was however appointed as the Chief Minister on 7th December 1968. Subsequently the Governor appointed him as a Member of the Legislative Council. The contention of the petitioner was that the word 'Minister' in Art. 164(4) did not apply to the Chief Minister. This argument was rejected by the Learned single Judge of the Allahabad High Court who held that to exclude the Chief Minister from the word "Minister" in Art. 164 would lead to absurd results as it would exempt the Chief Minister from the Legislative control in the matter of his salary and also the constitutional duty to take oath of office. Secondly it was held that the only requirement for appointment as the Chief Minister was that the selection by the Governor must be according to the cardinal principle of Parliamentary government i.e. that the Chief Minister must be a man enjoying the confidence of the majority of the elected. members of the legislature. 31. The learned Judge further held that even though there was a convention in Britain that the Prime Minister should be a member of the House of Commons and although this may be a desirable incorporation in the Indian set up, but having regard to the words of the Constitution as contained in Art. 164(4) it followed that the appointment as the Chief Minister of a person who is not a member of the Legislative Assembly but commands its support pending his election to that House within six months was not limited by the Constitution nor did it violate the Principle of Parliamentary government that the Chief or the Prime Minister must have the confidence of the legislature. The learned Judge further said whether such a "stop-gap" appointment is politically desirable or proper, is not a matter for this court to consider. 32. The learned Judge further said whether such a "stop-gap" appointment is politically desirable or proper, is not a matter for this court to consider. 32. The language is admirable and considering the parallel nature of Arts. 164 and 75.1 respectfully adopt the reasoning to provisions of Art. 75(5) and the appointment of a Prime Minister as well. 33. Indeed, this is also the opinion expressed in Volume I of the Constitutional Law of India edited by M. Hidayatulla at page 757. It is said there: "As persons, who were members of neither the Council nor the Assembly of the State, had become Chief Minister, we may ask whether a non-member of Parliament could become Prime Minister of India. Article 75(5) and Art. 164(4), which are identical provisions, provide that a Minister, who is not a member of either House for any period of six consecutive months, shall at the expiration of that period resign. By parity of reasoning it may be said that if Art. 164(4) can be stretched so far as to enable a non-member of the State Legislature to serve as Chief Minister for six months, Art. 75(5) ought to countenance a non-member serving as Prime Minister for the same period." 34. Doubtless we are interpreting a Constitution and "it is proper to keep in mind the conventions prevalent at the time of the Constitution was framed" (per Sikri, CJ. in UNR Rao vs. Indira Gandhi: AIR 1971 SC 1002 ) but the petitioner's submission that invention decrees that the Prime Minister must be appointed from the .elected members of Parliament or at least from the members of Parliament is untenable. 35. The first characteristic of a convention is that it is not immutable or rigid. The nature of Conventions has been described in Ivor Jennings Cabinet Government (Third Edition): "They grow out of. and are modified by practice, and at any given time it may be difficult to say whether or not a practice has become a convention... Occasionally, single precedent will other throw a longstanding rule." 36. In a similar vein in Constitution and Administrative Law by Stanley De Smith and Rodney Brazier (Third Edition) at pages 160, 161 & 164 it is observed: "It is nevertheless possible to list a number of conventional rules about the Prime Minster and the Cabinet. Occasionally, single precedent will other throw a longstanding rule." 36. In a similar vein in Constitution and Administrative Law by Stanley De Smith and Rodney Brazier (Third Edition) at pages 160, 161 & 164 it is observed: "It is nevertheless possible to list a number of conventional rules about the Prime Minster and the Cabinet. The authenticity of some of the rules is dubious, since their binding force is sometimes questionable and they are apt to change with a disconcerting frequency." 37. A second and an important characteristic of conventions is that they do not exist for their own sake but because there are good reasons for them. 38. A .third characteristic of a convention as far as India is concerned, is that a convention cannot be used to cut down or limit any constitutional position whatever the pedigree of the convention. 39. Finally, it is doubtful whether breach of a convention would mean that the action is unconstitutional. 40. Keeping these principles in mind it is difficult to accept that there was any such existing convention as claimed by the petitioner in England when the Constituent Assembly framed the Constitution. It is true that Ivor-Jennings in "Cabinet Government" (3rd Edn., page 221) has said "It is a settled rule that the Prime Minister must be either a peer or a Member of the House of Commons". But what Mr. Jennings has not said is that the convention was that the Prime Minister must be either a Peer or Member of the House of Commons at the time of his appointment. 41. Thus Alexander Douglas Home became the Prime Minister of Britain. When he was a member of neither House (Page 4 Chambers Biographical Dictionary; Edinburgh, 1990; reprint 1995). Harold Macmillan who preceded him as Prime Minister had resigned as Prime Minister on 18th October, 1963. On the same date, Home was called by the Queen and asked to form the Government. At that time Home was a member of the House of Lords. On 19th October, 1963 Home accepted the appointment. On 23rd October, 1963 he declaimed his poorage. He then stood for elections and won on 7th November, 1963. He was thus not a member of the House of Commons at the time of his appointment and for about 15 days. On 19th October, 1963 Home accepted the appointment. On 23rd October, 1963 he declaimed his poorage. He then stood for elections and won on 7th November, 1963. He was thus not a member of the House of Commons at the time of his appointment and for about 15 days. he was not a member of any House at all (Facts about British Prime Minister; Mansell, London 1994). 42. There is another aspect of the matter. If when the Indian Constitution was framed as contended by the petitioners, England had a Convention that all Ministers should be members of either of the Houses of Parliament, then the Constitution has expressly scrapped this convention in Art. 75(5) as far as all Ministers are concerned, including, for the reasons already stated, the Prime Minister. Thus assuming there was such a Convention in England as claimed by the petitioners at the time of the drafting of the Constitution, It did not survive the Constitution as framed. 43. The submission of the Advocate General that there was no established Convention in India to the effect that a person could not be appointed Prime Minister unless he/she were an elected member of either House appears to be correct not only in the case of P. V. Narasimha Rao but also in the case of Indira Gandhi the appointees were not elected members of either of the Houses when they were appointed as Prime Minister. 44. Interestingly the authors of Constitution and Administrative Law have recorded: "In any event, the procedures now adopted by all the major political parties for electing their own leaders seem to carry a necessary implication that the Prime Minister, when appointed, shall be a member of, or shall be about to occupy his seat in, the House of Commons." 45. To sum up : I hold that Art. 75(5) of the Constitution permits the President to appoint a person who is not a member of either House of Parliament as Prime' Minister subject to the possibility of his commanding the support of a majority in the Lok Sabha and provided such person can qualify as a member under Art. 84 and 102. 46. It only remains for me to touch on the point of the President's failure to call on the Congress (I) to form the Government. 46. It only remains for me to touch on the point of the President's failure to call on the Congress (I) to form the Government. This was a matter for assessment by the President on the materials before him as to who would be able to command a stable majority [(See R. K. Jain vs. Union of India (1993) 4 SCC 119 )]. Besides it is not the case of the petitioner that the respondent No. 2 did not either have the possibility of getting the support of the mojority of the House or that he did not have the potential to be elected a member of Parliament when he was appointed. 47. Although the territorial jurisdiction of this Court was questioned the point was not seriously pressed. Even if it were, it is difficult to accept the submission that in view of the provisions of Art. 226(2) of the Constitution, no part of the cause of action had arisen within the jurisdiction of this Court in a matter relating to the validity of the appointment of the Prime Minister of India. 48. For all these reasons I decline to issue a Rule Nisi and I dismiss the petition. Application dismissed.