Silence In The Constitution Of India

Nothing is specified in the Constitution about the fate of ministry over the sudden death of its head. While providing alternatives to President, Vice President, Speaker and Chief Justice of India (CJI) on resignation, removal, retirement or unfortunate death, the Indian constitution did not want to create acting PMs and CMs.

In a democracy, people’s representatives alone will rule through a team (cabinet) emerging out of them, which provide continuity and certainty to administration. Instead of a single man with all power at the helm of affairs, which might lead to tyranny of dictatorship, the Constitution preferred rule by multiple personalities with collective responsibilities, such as Council of Ministers.

For practical purposes, the governance is done under the name of either President or Governor. As ‘heads’ rule in both the houses and apex offices like President and CJI, it is the team that runs the states. The Constitution insists on a team, existing on all occasions to assist and advice the President. Similarly, the government should not be left only to the nominated Governor, whom it is mandatory to get advice from the Council of Ministers or with the Central Council of Ministers, in case of President Rule. When Governor rules with advice of two secretaries, they call it President Rule and not Governor Rule, because the Central government guides the Governor through President in administering state, which, otherwise, has to be done by the State Council of Ministers.

When minute aspects are not dealt in text, conventions have to be looked into. Late Guljari Lal Nanda sworn in twice as Prime Minister; once after the death of the first Prime Minister Jawaharlal Nehru, and second, when Lal Bahadur Shastri died in office. However, the other members of cabinet continued without swearing in again. Though Mr. Nanda was a full-fledged Prime Minister for a short, he was described as ‘Acting Prime Minister’ by media. Thus, ‘acting’ is the designation given by media but not by the Constitution.

President Zail Singh appointed late Rajiv Gandhi as the Prime Minister of India without waiting for anybody’s recommendation after assassination of Indira Gandhi. The constitution allowed him to exercise his ‘discretion’ on satisfying that he could provide stable government (Constitution authorises to appoint any person as the Prime Minister). Almost similar powers are given to the Governor as the head of State (Article 153). Rajiv Gandhi expanded cabinet within a few days, till then Indira’s old cabinet continued. He recommended dissolution of House and faced polls to win with 4/5th majority. Thereafter, Rajiv Gandhi picked up his team and took oath with extended team.

The amended Constitution (91st Amendment in 2003) prescribed mandatory minimum of 12 and maximum 15 per cent ministers of the strength of the party in the House [Article 164 (1-A)]. When the entire team of Nehru, Shastri, Indira at the Center and YSR in AP continued, it amounts that there existed sufficient number of ministers and it could not be rendered unconstitutional by this new mandatory provision.

Though British Convention says that the death of the Prime Minister brings an end to his cabinet, India had a different practice emerging out of incidents of appointing Mr. Nanda. The most accepted practice is that the ‘Convention’ ceases to exist at the moment, when it is broken. Thus, the British Convention, being broken in India, is no more a Convention. Even otherwise, we have not inherited British Convention. Enslaving to unnecessary ceremonies is against collective governance principle, envisaged by rule of law.

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 the United Kingdom, which should make a lot of difference. Indian Constitution envisages a Parliamentary Democracy, which was established in UK, but our 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.

Article 164 mandates that the Governor shall appoint the Chief Minister based on his ‘satisfaction’ and on his advice appoints other ministers. These ministers shall hold the office during the pleasure of the Governor. As per 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. All this is read into expression ‘pleasure’ of Governor, the basis of appointing a chief minister.

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. It is just a simple exercise to put Mr. Rosaiah in office, vacated by the death of Dr YSR, as he enjoys comfortable margin in assembly to satisfy Governor.

When CM resigned, or removed, or when either Chief Minister or his cabinet colleague looses confidence or his finance bill suffers defeat, entire cabinet falls. Inevitably new team has to assume office. Entire team ceases to exist only when President Rule is imposed in a state, however, the team continues to hold office during elections, after dissolution of house or five year term ends. The cabinet either stands or falls as a whole on two occasions – on resignation or removal. Despite the death of CM, team remains.

There is no Constitutional fallacy, if the old team is retained with the new leader, replacing the office of the deceased Chief Minister. Though administering oath of office again might not be unconstitutional, it could be unnecessary. Strange things happen in our dynamic politics. A Chief Minister, instead of advising Governor, will be seeking his advice. An independent speaker rarely ascertains constitutional equivalence in authority, but goes by writ of a court in legislative matters. The separation of powers, three-step federal administration, judicial independence and the legislative autonomy are hallmarks of Constitutional governance. Ultimately what people want is that those, who took oath twice to protect constitution, should understand and implement that promise. The spirit and essence of rule of law should not be left out for our clamour to empty ‘repeat’ ceremonies.