The media forces Andhra Pradesh ministers to take oath again
Until Rosaiah said that he was not caretaker Chief Minister, the media was calling him that, also using the prefixes acting or temporary and stop-gap.It is difficult even for the world's bulkiest Constitution to provide for every doubt the controver
says MADABHUSHI SRIDHAR
Recently the Andhra Pradesh media bombarded the Rosaiah government with repeated questioning: where are your ministers? Will Rosaiah alone rule Andhra? Did the Council of Ministers not expire with the demise of Chief Minister Dr Y S Rajasekhar Reddy, they wanted to know.
It is difficult even for the world's bulkiest Constitution to provide for every doubt rule-oriented politico-legal persons and the controversy-loving media might raise. The 2nd September helicopter crash killing Andhra Chief Minister opened up another 'gap' between different provisions of rule book and provided great scope for electronic media to unleash continuous debates and interviews. The media ran a campaign as to whether these ministers were Past ministers or Present, Continuous and Constitutionally valid ministers? While one minister said we were not ministers at all, another minister contradicted saying 'we need not take oath again'.
High Court Lawyers and Law Professors were frequently appearing on TV screens to give contradictory opinions. Even as the media haunted the ministers with prefix 'former', the Governor, ND Tiwari after risk-free advice from the Advocate General, administered the oath of office again to the same set of ministers of erstwhile Dr Y S R cabinet. It was a brief ten-minute ceremony which went like a group song where all ministers read out the oath text, some in English, some in Telugu, etc. Some could not spell correctly while some missed some words. An anchor also raised a question-"is this a valid oath taking?"
Silence in the Constitution of
Nothing is specified in Constitution about the fate of the Ministry when its head dies. While providing alternatives to President, Vice President, Speaker and Chief Justice of India on resignation, removal, retirement or unfortunate death, the Indian Constitution did not want to create acting PMs and CMs, but media calls them so. In a democracy the people's representatives alone will rule through a team (cabinet) emerging out of them, which provide continuity and certainty to administration. Instead of 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. While the 'head's rule in both houses, and top offices like President and CJI, the real administration of state is run by a team and not by individual. The constitution insists on a council of ministers existing on all occasions to assist and advice the President. Similarly the Government at states should not be left only to the nominated Governor, whom it is mandatory to get advice of Council of Ministers or with Central council of Ministers in case of President Rule. When aGovernor rules with advice from two secretaries they call it President's Rule and not Governor's Rule, because the central government through President guides the Governor in administering state which otherwise has to be done by the state council of Ministers.
Media Called Nanda 'Acting' PM
When minute aspects are not dealt in the text, conventions have to be looked to. Gulzari Lal Nanda was sworn in twice as Prime Minister - once after the death of first Prime Minister Jawaharlal Nehru, and secondly, thereafter when Lal Bahadur Shastri too died in office, even as other members of cabinet continued without swearing in again. Though G L Nanda was a full-fledged Prime Minister for a short period, the media described him as 'acting Prime Minister'. Thus 'acting' is the designation given by media but not by the Constitution. Until Rosaiah said that he was not caretaker Chief Minister, the media was calling him that, also using the prefixes acting or temporary and stop-gap. While ministers were busy campaigning for crowning YS Jaganmohan Reddy, son of YS Rajasekhar Reddy chief minister, the TV channels focused on 'the constitutional storm' and on the need for 'oath of office'.
President Zail Singh made Rajiv Gandhi Prime Minister after the assassination of Indira Gandhi, without waiting for anybody to recommend him. Because the Constitution allows him to exercise his 'discretion' on satisfying himself that he could provide stable government. The Constitution authorizes him to appoint any person as the Prime Minister. Almost similar powers are given to Governor as the head of state (Article 153). Till Rajiv Gandhi expanded the cabinet within a few days, 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 big team.
The Constitution as amended (91st Amendment in 2003) prescribed mandatory minimum of 12 and maximum 15% ministers of the strength of the party in the House (Article 164 (1-A). When the entire team of Nehru, Shastri, and Indira at Centre and YSR in AP continued, it meant that there existed a sufficient number of ministers and it could not be rendered unconstitutional by this new mandatory provision.
Though British convention says that the death of Prime Ministers puts an end to his cabinet,
The Supreme Court in UNR Rao vs 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
Article 164 mandates that the Governor shall appoint the Chief Minister based on his 'satisfaction' and on his advice, 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 a requirement of majority MLAs support for the Chief Minister, but it is necessary for the 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 as 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 Rosaiah in an office vacated by death of Dr YSR, as they enjoy a comfortable margin in the assembly which satisfies the Governor.
When the CM resigns, or is removed, or where either the Chief Minister or his cabinet loses confidence, or his finance bill suffers defeat, the entire cabinet falls. Inevitably the new team has to assume office. The entire team ceases to exist only when President Rule is imposed in a state. Whereas the team continues to hold office during elections, either after dissolution of house or after a five year term ends. The cabinet either stands or falls as a whole on two occasions - on resignation or removal. On the death of CM, the team remains.
There is no constitutional fallacy if the old team is retained a with new leader replacing the office of deceased Chief Minister. Though administering the oath of office again might not be unconstitutional, it could be unnecessary. The spirit and essence of the rule of law should not abandoned in the clamour for empty 'repeat' ceremonies. Indeed, it is a great achievement for the media to force all ministers to take the oath again!
Professor Madabhushi Sridhar is at the
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