(No Constitutional Crisis, Except ‘Formality’ Confusion)

Professor Madabhushi Sridhar, NALSAR University of Law, Hyderabad

The Council of Ministers are going to take oath of office and secrecy ‘once’ again, to answer the doubt – whether the cabinet ceased to exist with the sudden demise of Dr. Y S Rajasekhar Reddy. Finance minister in erstwhile cabinet, Mr K Rosaiah was sworn in as the Chief Minister by the Governor N D Tiwari on 3rd September. Some of the Constitutional experts are of the opinion that with the untimely demise of Rajasekhar Reddy on 2nd September in Helicopter crash at Nallamala forests, the entire cabinet lost its validity, and thus there is no Council of Ministers at the helm of affairs today and it is illegal that the Governor should be satisfied with the ‘aid and advice’ of the Chief Minister alone without a team duly constituted and sworn in. Electronic media is describing all the ministers as ‘former’ ministers until they swear in again by the Governor as per the Constitutional provisions under Article 163 and 164. The advice from the Advocate General to administer oath of office might have been based on practical reasons to avoid unnecessary litigation over this non-existent issue. It is redundant and waste of public money and precious time of constitutional officer holders to re-administer oath of office to the same team again. It is obvious that the team has legislative support from the House constituted after 2009 general elections to State Assembly. Only one man missing was the Chief Minister Dr. Y. S. Rajasekhara Reddy who was replaced by Mr K Rosaiah by swearing in.

Silence in Constitution of India

There is a text in the Constitution on the aspect whether on death of Chief Minister in office necessarily results in ceasing of entire Council of Ministers.  Article 65 says that in the event of the occurrence of any vacancy in the office of the President by reason of his death, resignation or removal, or otherwise, the Vice-President shall act as President until the new President is elected. There is no such provision in case of occurrence of vacancy of office of Vice President. It says there shall be election to that office to fill vacancy as soon as possible [Article 68(2)] As the Vice President is the chairman of Council of States (Rajya Sabha) Article 91 says that duties of office of Chairman shall be performed by Deputy Chairman when the office of Vice President is vacant or Vice President is performing functions of Acting President. Similar provisions are made for Speaker also (Article 95). Article 126 provided for appointing one of the judges of Supreme Court as acting Chief Justice of India in case of vacancy. But there is no provision in Constitution for ‘Acting Prime Minister’, “Acting Chief Minister’ or “Care-taker Chief Minister’ etc. The founders of Constitution must have thought that the Prime Minister and Chief Minister would be part of a team called Council of Ministers holding collective responsibility would take care of such situation of arising sudden vacancy.

In the absence of written provisions, we need to look for judicial pronouncements, which are also not there on this subject. Then the conventions rule the situation.

Such a convention has come into existence in India when Mr Guljari Lal Nanda was sworn in as Prime Minister (Not as acting Prime Minister) after the death of first Prime Minister Jawaharlal Nehru, while other members of the cabinet continued without swearing in again. It happened again after the death of Mr Lal Bahadur Shastry wherein Nanda was sworn in again, with old team. He was described as the Acting Prime Minister by others and media, but he was in fact ‘the Prime Minister’ for whatever the term he ruled. President Zail Singh invited Rajiv Gandhi to take over as Prime Minister after his mother Prime Minister Indira Gandhi was assassinated. He alone took oath. After some time he chose to take some ministers. Till then old cabinet continued. Thereafter he dissolved the House to go to polls. After his tremendous victory getting 4/5th majority in the House, he was sworn in again by President Zail Singh.

The Constitution was amended in 2004 to make it mandatory that every Council of Ministers shall consist of 12 members at least. Maximum prescribed was 15 per cent of total strength of members in House, and it provided that if ministers more than this number existed that should be brought down within six months. This mandatory principle also would not affect or invalidate the Rosaiah’ Government because he has already the entire team of erstwhile Rajasekhar Reddy with him.  Every thing with minute details dealing with all contingencies cannot be written in Constitution and such gaps could be filled by established practices. Though British convention says that the death Prime Ministers causes whole cabinet to collapse, that was not followed in India which fact was established thrice at the center. Even if we assume that we inherited British convention, it is broken by these three precedents. The most accepted practice is that the ‘convention’ ceases to exist the moment it is broken.

Those who vehemently argue that death of Chief Minister will put an end to entire cabinet are taking support of unwritten Constitutional conventions of British democracy where the death of Prime Minister dissolves the entire cabinet and requires a new Prime Minister to swear in with the new team of ministers. We need not inevitably inherit as all British conventions simply because they ruled for two centuries. We should come out of British slavery and evolve a mechanism suitable for the situation we might confront.  The Supreme Court in UNR Rao v Indira Gandhi, AIR 1971 SC 1002 held: “We must interpret Article according to its own terms regardless of conventions that prevail in United Kingdom….It must be remembered that we are interpreting a Constitution which establishes a Parliamentary System of Government with a cabinet”.  We are a republic where head of state is elected and not the Crown as in United Kingdom, which should make a lot of difference. Indian Constitution envisages a Parliamentary Democracy, which was established in UK, but out Constitution is not a Photostat copy of United Kingdom’s Constitutional practices. Another major difference between English Constitution and ours is that former is unwritten and based on conventions established over a period of time, while we have developed a comprehensive text of Constitution after exhaustive deliberations.

The Constitution of India envisages continuity and collective responsibility in administration so that sudden incidents like tragic end of the chief minister in office should not hinder the governance. Though media describes Mr. K. Rosaiah, as care taker Chief Minister, there is no such expression in the Indian Constitution, which knows only that ‘there shall be a Council of Ministers with the Chief Minister as 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’. [Article 163(1)] Even if Mr. Rosaiah remains in office for a month or less than that he would be the constitutional holder of office of ‘Chief Minister’ of Andhra Pradesh and remains so in the annals of its history.

Article 164 mandates that the Governor shall appoint the Chief Minister and on the advice of Chief Minister, appoints other ministers and the ministers shall hold the office during the pleasure of the Governor.  As per the Article 164(2) the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. There is no mention of requirement of majority MLAs support for the Chief Minister, but it is necessary for Council of Ministers to enjoy the confidence of House to keep the fabric of parliamentary government in proper working order. Article 164(3) says that before the Minister enters upon his office the Governor shall administer to him the oath of office and of secrecy.   After 2009 elections four months ago, the Governor appointed Dr Y S Rajasekhar Reddy as the Chief Minister and on his advice entire Council of Ministers was sworn in. By Governor’s action Rosaiah takes office vacated by the death of Dr. YS Rajasekhar Reddy, while others continue. It is a simple consequence being confused with unnecessary complexities and insisting on for one more swearing in.

When Chief Minister looses the vote of confidence in Assembly, it is not the Chief Minister alone but his entire cabinet looses the confidence and thus falls as a whole. When the Chief Minister resigns, he also submits the resignation of the members of Council of Ministers. Then, inevitably, the new Chief Minister has to choose his new ministers. However, even after the defeat of motion, the Chief Minister and his cabinet will continue in office till the new team takes over. This happens even when the House is dissolved either on advice of the Chief Minister or otherwise, then also the Council of Ministers would continue in office till the new cabinet takes up reigns of administration. The position is same, ie., the team of Council of Ministers continues, when the legislature completes the five year term and general elections are held for constituting new house in a newly constituted house after elections.  The Constitution provides for continuity and certainty of administration and a team to hold collective responsibility to advice the Governor. The cabinet either stands or falls as a whole on two occasions – on resignation or removal. Of course, when President’s rule is imposed in a state, the cabinet ceases to exist and the machinery runs with an advisor appointed by President to aid and advise the Governor. Thus death, removal, resignation are three situations which result in vacation of office of Chief Minister (or any office). The Chief Minister with his cabinet would be outgoing after removal and resignation, it would continue in office till the Governor appoints new team. What is to be understood is that the situation caused by the death of the chief minister is totally different, which requires constitutional machinery of governance to continue.

There is no constitutional fallacy if the old team is retained with new leader replacing the office of deceased Chief Minister. If swearing in is insisted as technical requirement, that could be fulfilled, but not doing so will not invalidate the office of the ministers or their collective decisions.

It is reported that the Chief Minister Rosaiah sought the advice of the Governor with reference to the need or otherwise of swearing in of the members of the council of ministers. He was also seeking the opinion of the Advocate General. What Constitution says is that Rosaiah has to advice the Governor, not vice versa, as to appointment of the ministerial colleagues. Any of the members of the cabinet not interested in continuing in the team of Rosaiah, could leave by resignation as the team is accountable and collective responsible. On the whole it is an unnecessary controversy. It is ridiculous to assume that by mere swearing in again is what all needed for restoring ‘constitutionality’. In the absence of specific rules, we need to look to judicial interpretations. If such interpretation is also not available, the convention of Nanda and Rajiv Gandhi at center rules the situation. Instead of insisting on empty formalities or formal ceremonies, we need to understand the objective, purpose and scheme of Constitution and harmoniously interpret them to avoid the confusion and not to create one.  What needed is that the ministers should live up to their ‘oath’ of upholding the Constitutional values, whether they were sworn in, once or twice. But, with the decision of Chief Minister Rosaiah to swear-in the same old team again, a new convention that ‘the entire cabinet dies with the death of person in chief minister office’ is established. It is unnecessary.