R.R. Datavai v. The Government of Tamil Nadu, Rep. by Chief Secretary

1. These two writ petitions have been brought before this Court by way of public interest litigation challenging the constitutional validity of the executive actions taken in the name of the Governor of Tamil Nadu during the period 10^th February, 1985 to 15^th February, 1985, by the Chief Minister.

2. So far as facts are concerned, it would be convenient to refer to the facts in W.P. No.1874 of 1985. After the elections to the State Legislative Assembly had taken place on 24-12-1984, the AIADMK Party was returned to power, having secured an absolute majority of 132 seats out of it total number of 234 seats in the Legislative Assembly. Prior to the holding of the elections to the State Legislative Assembly the second respondent was the Chief Minister of the State of Tamil Nadu and he became seriously ill in the first week of October, 1984. During the illness of the second respondent the Governor issued a gazette notification on 25-10-1984 directing that during the period of the medical treatment of the second respondent, the subjects which were being dealt with by him, are allotted to Mr. V.R. Nedunchezhiyan, Minister of Finance, and that he would preside over the Cabinet meetings during the absence of the second respondent. The Notification reads as follows:-

1. “Under Cl. (3) of Art.166 of the Constitution of India, the Governor of Tamil Nadu hereby directs that during the period of medical treatment of Thiru (Dr.) M.G. Ramachandran, Chief Minister, the subjects delay with by him be allocated to Thiru (Dr.) V.R. Nedunchezhiyan Minister for Finance.

2. Thiru (Dr.) V.R. Nedunchezhiyan, Minister for Finance, will preside over the Cabinet Meetings during the absence of Thiru (Dr.) M.G. Ramachandran”.

3. The second respondent was taken to the United States of America for medical treatment and was out of India from 6-11-1984 to 4-2-1985, on which date he returned back to India. As already stated, in the meantime, elections to the State Assembly had taken place, and the party of the second respondent, which had secured a majority of seats in the Legislative Assembly, elected the second respondent as Leader or the Party on 31-12-1984. This decision was duly communicated to the Governor. On 3-1-1985 the Governor wrote a letter to the second respondent in America to know his programme regarding the formation of the new Government and stating that, if his return to India was likely to be delayed, arrangements for the forming of the Council of Ministers in his absence would have to be made. The Governor was informed that the second respondent would return to India in the first week of February, 1985. Accordingly the second respondent arrived in Madras on 4^th February, 1985.

4. After the Governor had made a courtesy call on the second respondent at his residence on 4^th February, 1985, the second respondent wrote to the Governor stating. “I propose that the swearing-in of the new ministry may be held sat 9 a.m., on the 10^th February, 1985, at Raj Bhavan.” The Governor replied to the second respondent on the same day confirming his oral invitation conveyed to the second respondent to head the new Council of Ministers, and informing him that “the Swearing-in can take place at Raj Bhavan on Sunday, February 10, at 09.00 hours”. The Governor also accepted the suggestion of the second respondent that the function would be a simple one.

5. On 9^th February, 1985, the second respondent wrote back to the Governor, thanking him for inviting him to head the new Council of Ministers, but suggesting that “only the swearing-in of me as the Chief Minister can take place at the function to be held on the 10^th February, 1985”. With regard to the other Ministers, the second respondent wrote, “Other Ministers can be sworn-in in a few days. I shall furnish the list of persons, to be appointed as Ministers personally to you on the 12^th February, 1985.”

6. It appears that earlier by a letter dated 20-12-1984 the second respondent had conveyed to the Governor his resignation as well as the resignation of his colleagues from the Ministry and the Governor had requested the second respondent that he had his colleagues should continue to discharge their functions until a new Ministry was sworn in. By a letter dated 9^th February, 1985, the Governor informed the second respondent that, since the second respondent had suggested that he could be sworn-in on 19^th February. 1985, to head the new Government, he was accepting the resignation of the second respondent and his colleagues with effect from 10^th February, 1985. The Governor confirmed that the second respondent would be sworn-in at 9 a.m. on 10^th February, 1985, and suggested that the swearing-in of the other Ministers, with regard to whom the second respondent had indicated that he would be giving their names on 12^th February, 1985, should also be gone through as soon as possible. Accordingly on 10^th February, 1985, two notifications came to be published. Notification. G.O.Ms.No.228 dated 10^th February, 1985, was as follows:-

“I S.L. KHURANA, Governor of Tamil Nadu, hereby accept with effect from the forenoon of 10^th February, 1985, the resignations tendered by the following members of my Council of Ministers, namely:

1. Thiru (Or.) M.G. Ramachandran,

2. Thiru (Dr.) V.R. Nedunchezhiyan

……………………”

The other notification, being G.O.Ms.No.229, dated 10^th February, 1985, read as follows:-

“I S.L. KHURANA, Governor of Tamil Nadu hereby appoint Dr. M.G. RAMACHANDRAN, as Chief Minister, heading the new Government from the forenoon of 10^th February, 1985.

S.L. KHURANA,

Governor of Tamil Nadu.

K. CHOCKALINGAM,

Chief Secretary.”

After the second respondent was sworn, in as Chief Minister, he wrote a note addressed to the Chief Secretary in Tamil, a correct translation of which was made available to us by the learned Advocate-General, which reads as follows:

“Chief Secretary to send urgent and time-bound files for my orders.”

7. It was only on 14^th February, 1985, that a Notification came to be issued, appointing sixteen persons “to be the other members of the Council of Ministers” by the Governor of Tamil Nadu, on the advice of Dr. M.G. Ramachandran, Chief Minister of Nadu. However, only two of those sixteen persons were sworn-in as Ministers, and the oath of office and secrecy was administered to the other fourteen persons only on 15-2-1985. On 14^th February, 1985, the Governor also issued a Notification under Clause (3) of Art.166 of the Constitution of India, allocating among his Ministers the business of the Government. This Notification also referred to the allocation of the business of the Government to the second respondent.

8. Admittedly from 10^th February, 1985, to 13^th February, 1985, there was no Council of Ministers as such, and there was only the Chief Minister (second respondent) in the State of Tamil Nadu, It is not in dispute that during this period, 10^th February, 1985, to 13^th February, 1985, the second respondent took certain decisions and executive action was taken “by order and in the name of the Governor.” By way of illustration, the petitioner has referred to an order passed by the Chief Minister, canceling the posting Mohandas, as Special Commissioner for Training, made by the previous Council of Ministers, during the absence of the second respondent, and, according to the petitioner, this was the first order signed by the Chief Minister on 10-2-1985 after assuming office. The petitioner has also referred to the Notification published in the Gazette Extraordinary dated 12-2-1985 under S.4 of the Tamil Nadu Relief undertakings (Special Provisions) Act, 1969, in the name of the Governor of Tamil Nadu, issued by the Commissioner and Secretary to the Government, Industries Department, and it series of Notification published in the Gazette Extraordinary dated 13-2-1985, Pant II S.2 containing Government Orders dated 11-2-1985 and 12-2-1985 under Ss.6 and 7 of the Land Acquisition Act.

9. The petitioner, who is a Member of the Tamil Nadu Legislative Council, having been elected by the Members of the Tamil Nadu Legislative Assembly, and is also a practising Advocate at Madras, and holds the office of Treasurer of the DMK party in the State claims to be vitally interested in upholding the supremacy of the Constitution and the rule of law, and in particular in the administration of the State, Government being carried on in accordance with the provisions of the Constitution. He has averred that, when he is challenging the Constitutional validity of the executive action taken during the period from 10-2-1985 to 14-2-1985, he is nothing it for the vindication of any private right of the petitioner or of any other individual, that he is not actuated by any political motive or consideration and that the petition is conceived purely as a bona fide public interest litigation. Strictly speaking, the subject-matter or challenge in the petition could be only the executive action taken in the name of the Governor of Tamil Nadu from 10-2-1985 to 13-2-1985, because on 14-2-1985 with effect from the forenoon, two other Ministers had already been sworn-in, end, in the real sense of the term, there was therefore a Cabinet headed by the Chief Ministers, and consisting of two other ministers. According to the petitioner, the second respondent could not act in the name of the Governor, in the absence of a Council of Ministers, the existence of which is a mandatory requirement under Art 163 (1) of the Constitution of India. The Contention is that, since as a result of the Notification dated 25^th October, 1984, the subjects which were originally dealt with by the Chief Minister, the second respondent, were already allotted to Mr. Nedunchezhiyan, the then Finance Minister, when the second respondent came back to India on 4-2-1985, he was Chief Minister without any portfolio and that the allocation of portfolios having been made only by the Notification dated 14-2-1985, the second respondent could not have exercised any executive power of the State Government in respect of any subject. Therefore, according to the petitioner, all executive action taken by the chief minister of Tamil Nadu in the name of the Governor between 10-2-1985 and 13-2-1985 was constitutionally invalid and the petitioner was entitled to have them so declared.

10. The petitioner in W.P.No.1795 of 1985, Mr. R.R. Dalawai, who is the Convener of Civil Liberties Council, Madras, has contended that between 10^th and 14^th February, 1985, “the Chief Minister entered upon his office without constitutional or administrative authority and initiated executive functions in the guise of constitutionally constituted cabinet or Council of Ministers.” This, according to the petitioner, was dictatorial and amounted to one-man autocratic rule. Mr. Dalawai has contended that the Constitution having vested the executive powers in the Council of Ministers, while he did not object to the second respondent alone being sworn in as Chief Minister, his objection was to the Chief Minister entering upon his office and performing the functions of the Government which he could not do in the absence of a duly constituted council of Ministers. The petitioner therefore asked for a declaration that “all official acts executed by the Chief Minister, from the time the resignation of the interim Government was accepted by the Governor on 10^th February, 1985, and till two more Ministers were sworn to constitute the Council of Ministers, as null and void and not enforceable.” By an interim application he had also asked for an injunction against the Chief Secretary to the Government restraining him from further functioning as Chief Secretary of the Government of Tamil Nadu, because, according to him, it was the duty of the Chief Secretary, of the Government of Tamil Nadu to inform the Chief Minister that he was not entitled to enter upon the office in the absence of a duly constituted Council of Ministers.

11. The respondents have contested the claim of the petitioners that the petitions have been filed in public interest. In respect of W.P.No.1874 of 1985 the respondents have taken the stand that the petitioner belongs to the DMK Party which is one of the opposition parties in the State Legislature and that the DMK Party having been frustrated, because it secured only 22 seats out of a total number of 234 seats in the Legislative Assembly, that party has been carrying on a tirade against the AI DMK Party of which the second respondent was the leader and the Government of which he was the Chief Minister. Along with the affidavit sworn to by the second respondent, a Tamil daily “Murasoli” dated 18-2-1985 has been produced in which an agitation was called for against the Chief Minister. According to the respondents, having regard to the Tamil Nadu Govern merit Business Rules framed under Art. 166 (3) of the Constitution of India, the Chief Minister could validly act, even if there were no other Ministers in the Cabinet. It was stated that the Chief Minister was responsible to the Legislature for every action taken by him and that the Chief Minister was enjoying the absolute confidence of the Legislative Assembly, as his Party had absolute majority in the State Legislature. The respondents have relied on Business R.35(1)(a)(x)(m) under which proposals for the appointment, posting and promotion of Indian Police Service officers have to be submitted to the Chief Minister before the issue of orders. Therefore, according to the respondents, the Chief Minister was perfectly competent to pass orders transferring Mr. Mohandas and posting him as the Director-General of Police, C.I.D. With regard to the other instances given by the petitioners, it was stated, in respect of the Notification issued under the Tamil Nadu Relief Undertakings (Special provisions) Act, 1969, that orders had already been passed on 7-2-1985 by the then Minister of Industries and that what took place on 12-2-1985 was only a publication of the Notification. With regard to the Notification under the Land Acquisition Act, it was stated that those notifications were issued as a result of the orders passed by the Minister of Finance prior to 10-2-1985.

12. Mr. Ramaswami appearing on behalf of the petitioner in W.P.No.1874 of 1985 has argued that the second respondent did not hold any portfolio when he came back from the United States of America and that, no portfolio having been allotted to him by the Governor under Art.166 (3) of the Constitution of India, he could not have exercised any executive power in respect of any portfolio. It was also argued that the Chief Minister, without other members of his Cabinet, has no constitutional existence as a Cabinet, because under Art. 163 of the Constitution of India it has been expressly provided that “there shall be a Council of Ministers with the Chief Minister at 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.” We are not, in these petitions, concerned with the functions of the Governor which he is required under the Constitution to exercise in his discretion. It was argued that in law there was no Council of Ministers as contemplated by Art.163 of the Constitution between 10^th February, 1975, and 9 a.m., on 14^th February, 1985, and that, in the absence of a validly constituted Council of Ministers, the machinery of Government could not have functioned validly at least between 10^th and 11^th February, 1985, because De hors the Cabinet, which owes responsibility to the Legislature, there cannot be a validly constituted Government. Reference was made to Art.154 of the Constitution of India, clause (1) of which reads as follows:

154 (1) The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.

The argument was that, when Art.154 (1) of the Constitution referred to the executive power of the State to be exercised by the Governor in accordance with the Constitution, such a power could be exercised only with the aid and advice of the Council of Ministers with the Chief Minister at the head. Therefore, the argument proceeds that, if there is no Council of Ministers with the Chief Minister at the head to aid and advise the Governor, then the Governor cannot be said to be exercising the executive rower of the State in accordance with the Constitution. According to learned counsel, what happened between 10^th and 13^th February, 1985, was that. since there was no Council of Ministers to aid and advise the Governor, the Governor was incapable of exercising the executive power in accordance with the Constitution of India, and, therefore, every action taken in the name of the Governor on the basis of decisions taken or orders made by the Chief Minister must be held to be in violation of the constitutional provisions. Reference was also made to Art.164 Cl. (1) and (2), which read as follows:-

164 (1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor.

(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.

The argument is that under the Constitution it is the Council of Ministers which is collectively responsible to the Legislative Assembly of the State and that it is imperative that the Governor should, at all times, have a council of Ministers to aid and advise him, which would be collectively responsible to the Legislative Assembly of the State. Reliance was placed on the decisions of the Supreme Court in Rai Sahib Ram Jawaya Kapur v. State of Punjab (A.I.R. 1965 S.C. 549), A. Sanjeevi Naidu v. Slate of Madras (A.I.R. 1970 S.C. 1102), U.N.R. Rao v. Smt. Indira Gandhi (A.I.R. 1971 S.C. 1002), K.N. Rajagopal v. M. Karunanidhi (A.I.R. 1971 S.C. 1551), and Samsher Singh v. State of Punjab (A.I.R. 1974 S.C. 2192), in support of the proposition that the executive power of the State can never be exercised unless there is a validly constituted Council of Ministers.

13. Mr. Dalawai, who appeared in person, has argued that, unless there was a Cabinet, the Chief Minister had no right to administer the State, and, relying on the decision of the Supreme Court in Samsher Singh’s case (A.I.R. 1974 S.C. 2192), it was argued that the Governor cannot discharge executive powers without the aid and advice of the Council of Ministers. It was pointed out that, when Art.164 (2) of the Constitution of India referred to the Council of Ministers being collectively responsible to the Legislative Assembly of the State, one man-the Chief Minister alone cannot be collectively responsible and that there has to be a cabinet which is collectively responsible to the Legislative Assembly. Mr. Dalawai argued that there cannot be a Chief Minister unless there is a Minister, and, to quote his own analogy, “the Chief Minister had to take the assistance of the Ministers, who were his crutches, before he could properly function as Chief Minister and Head of the State.”

14. The learned Advocate-General, who appeared on behalf of the respondents, has at the threshold contended that the petitioners have not made out any public wrong or public injury as a result of the actions of the Chief Minister and therefore the petitions were not maintainable as Public interest litigation. It was pointed out that the petitioners themselves did not know anything about the orders which were made by the Chief Minister. It was also argued that any decision in these writ petitions would be futile, because a Council of Ministers had now been constituted. Even if the actions of the Chief Minister between 10^th and 13^th February, 1985, are held to be bad, fresh orders could be issued in place of the orders made earlier. On merits, the learned Advocate General contended that, when Art.154(1) of the Constitution provides that the executive power of the State shall be exercised by the Governor in accordance with the Constitution, that Article must be read a long with Art.166(3) of the Constitution and the Business Rules made thereunder, The learned Advocate-General pointed out that the Business Rules made under Art.166(3) of the Constitution expressly enabled the Chief Minister to function individually and make his decision, the decision of the Government. Thus, according to the learned Advocate-General, during the interregnum, i.e. between 10^th February, 1985, and 13^th February, 1985, the Chief Minister alone could act validly in accordance with the Constitution.

15. An alternative argument was raised that, when Art. 163(1) of the Constitution provided that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor, then to quote the words of Counsel, “the Chief Minister, who is the Chief architect of the Council would constitute the Council during the interregnum”. Such an interpretation, according to the learned Advocate-General, would be consistent with the scheme of the Constitution, because such a construction would enable the Government to function during the interregnum, as otherwise there will be no Government at all and there will be a deadlock during the interregnum. Reliance was also placed on Art.164(1) of the Constitution, which provides:-

“The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor………”

The argument was that Art. 164(1) itself contemplated an interval of time between the appointment of the Chief Minister and the appointment of other Ministers. It was argued that the Constitution recognised the Chief Minister to aid the Governor in the most important function, namely, the appointment of other Ministers. With regard to the argument of Mr. Ramaswami, that the allocation of portfolios had taken place only on 14-2-1985 and that till then the Chief Minister could not be said to have had any portfolio, it was argued that there was no question of allocation of portfolios, when there was only one person, namely, the Chief Minister, and that Art. 166(3) of the Constitution read with R.5 of the Business Rules, along with its Explanation, showed that once the Chief Minister was appointed, he was the sole repository of power to deal with all the Departments of the Government.

16. Before we deal with these arguments it is necessary first to refer to the Tamil Nadu Government Business Rules (hereinafter referred to as the Business Rules), which have been made by the Governor in exercise of the powers conferred by Clauses (2) and (3) of Art.166 of the Constitution of India. Art.166(3) of the Constitution of India provides as follows:-

“The Governor shall make rules for the more convenient transaction of the business of the Government of the State; and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.”

The rules which could be made under Art.166(3) of the Constitution are therefore rules which are made for the more convenient transaction of the business of the Government of the State and rules could also be made for the allocation among Ministers of the said business. But these rules cannot deal with the business with respect to which the Governor is by or under the Constitution required to act in his discretion. In other words, the rules can provide only in respect of functions which the Governor has to perform with the aid and advice of the Council of Ministers, with the Chief Minister at the head. R.4 of the Business Rules provides that “the business of the Government shall be transacted in the departments specified in the First schedule, and shall be classified and distributed between these departments as laid down therein.” R.5 reads as follows:-

5. The Governor shall, on the advice of the Chief Minister, allot the business of the Government among the Ministers by assisting one or more departments to the charge of a Minister:

Provided that nothing in this rule shall prevent the assigning of one department to the charge of more than one Minister.

Explanation-(1): In cases where orders allotting business have to issue urgently, the allotment may be made by the Chief Minister and the cases circulated to the Governor after issue or orders.

Under R.5 allotment of the business of the Government among the Ministers has to be made on the advice of the Chief Minister. Explanation (1) to the rule expressly provides that where orders allotting business have to issue urgently, the allotment may be made by the Chief Minister himself and the cases circulated to the Governor after issue or orders.

17. R.11 of the Business Rules is a Substantial reproduction of Art.166 (1) of the Constitution. Art. 166 (1) provides:

“All executive action or the Government of a State shall be expressed to be taken in the name or the Governor.”

R.11 of the Business Rules provides as follows:

“All orders or instruments made or executed by or on behalf of the Government of the State shall be expressed to be made or executed in the name of the Governor.”

R.19 of the Rules provides that the Council shall meet at such place and time as the Chief Minister may direct. Under R.19 (4) the Chief Minister presides at every meeting of the Council, but, in his absence, any other Minister nominated by him shall preside at the meeting of the Council.

18. S.3 of the Rules deals with the Departmental Disposal of Business. R.21 provides that, except as otherwise provided by any other rule, cases shall ordinarily be disposed of by or under the authority of the Minister in charge, who may by means of Standing Orders give such directions as he thinks fit for the disposal of cases in the department and copies of such Standing Orders shall be sent to the Governor and the Chief Minister. Under R.22 each Minister can issue Standing Orders specifying what matters or classes of matters in his department shall be brought to the personal notice of the Minister. R.35 enumerates the classes of cases which shall be submitted to the Chief Minister before the issue of orders. One of the categories of cases in Clause (9) of R.35(1)(a) is “Proposals for the dismissal, removal or compulsory retirement of any gazetted officer.” Special reference has been made to clause (31) which reads as follows:-

“All cases in which the conduct of officers appointed by the former Secretary of State for India, listed post holders, officers of the Indian Administrative Service and Indian Police and State Service is involved and which the Secretary to Government in the Department concerned considers to be of sufficient importance to be submitted to the Chief Minister.”

Rule 35 (I) (a) which enumerates the classes of cases which are mandatorily required to be submitted to the Chief Minister before the issue of orders contains 53 clauses. Clause (iv) is a residuary clause which states:

Any other cases or class of cases which the Chief Minister specially direct to be submitted to him.”

Rule 35 (1) (b) provides that cases of routine nature or cases which the circulating officer does not consider to be of sufficient importance need not be circulated to the Chief Minister. That rule also enumerates the cases which are to be submitted by the Chief Minister to the Governor before the issue of orders. Sub-rule (4) of rule 35 reads as follows:

“Notwithstanding anything contained in this rule or any other rules, the Chief Minister may, by means of Standing Orders, give such directions as he thinks fit, to restrict and regulate the submission of any classes of cases to him or through him to the Governor, as the case may be. Copies or such Standing alders shall be sent to the Governor.”

19. Under the Rules of Business, therefore, apart from the case which are already enumerated, there IS power and authority in the Chief Minister to direct either individual cases or classes of cases to be submitted to him before final orders are passed.

20. The contentions of the petitioners, that no business of the Government can be transacted unless there is in existence, on the day on which the Chief Minister is sworn in 2. cabinet or Council of Minister’s has to be decided with reference to the provisions in Chapter II of Part VI of the Constitution of India and the Business Rules which are expressly framed in exercise of the powers under Article 166 (3) of the Constitution of India. Mr.Ramaswami has referred us to, what according to him is the convention in England, where the going out of the Cabinet and the ushering in of the new cabinet take place simultaneously, and, according to the learned counsel, in the United Kingdom there is no hiatus between the going out of the previous Cabinet and the swearing-in of the new Cabinet. Our attention has been invited to a passage from “Cabinet Government” by Sir Ivo Jennings (Third Edition) at page 87. The learned author has referred to what took place in England in 1841 when Lord Melbourne advised Queen Victoria:

“Your Majesty must, of course, consider us as having tendered our resignations immediately after the vote of last night, and your Majesty will probably think it right to request us to continue to hold our office and transact the current business until our successors are appointed.”

After quoting this form the Letters of Queen Victoria, the learned author observed as follows:

“What really happens is that the retiring Ministers receive notice, through the resignation of the Prime Minister, that they may be dismissed: whether they politely offer to resign or not makes no difference. The formal method of dismissal depends on the office. The Lords of the Treasury, the First Lord or the Admiralty and the Chancellor of the Dachy of Lancester are dismissed by the revocation of letters patent. The Lord Chancellor, the Lord Privy Seal the Secretaries of State and certain of the ministers surrender their seats. The office of Lord President of the Council is transferred by declaration in Council. No formal act is necessary in other cases, but the ministers are usually received by the Queen and thanked for their services. Shortly afterwards, often the two sets of ministers are in Buckingham Palace together, though they are not allowed to meet - their successors kiss hands upon their appointment.”

21. Relying on the above passage: learned counsel contends that, just as in the United Kingdom there is virtually no interval of time between the acceptance of the resignation of the earlier ministers and the swearing-in of the Successor members of the Cabinet, our Constitution, having adopted the Cabinet system of Government, must also be so construed, particularly having regard to the provisions of Article 163(1) of the Constitution that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions,” and the existence of a Council of Ministers is a pre-condition for the exercise of any executive power under the Constitution and the performance of any function of the Government.

21(a). It is true that before the new Chief Minister and his Cabinet is sworn in, the resignations of the former Chief Minister and his Cabinet have to be accepted. But no convention like the one referred to by learned counsel that the members of the outgoing and the incoming Cabinet have to be present at the same time at the place of the Governor has grown in India, nor has any instance of the English convention being - followed in India been brought to our notice. As a matter of fact, the practice now followed in England also appears to be that the leader of the majority in the House of Commons, after becoming the Prime Minister, Proceeds to No.10 Downing Street and sets himself upon the task of forming his cabinet. Harold Wilson in his extremely instructive treatise on “The Governance of Britain.” refers to the Constitutional practice on a change of Government, when the Sovereign asks the party leader who has been called to the palace, whether he can form a Government. To this, however, according to Harold Wilson, there are two possible answers, namely.

“One is for him to express assurance that a viable Government can and wilt be formed. The other is a statement of willingness to hold the necessary consultations to find out whether a Government can be formed.”

He then refers to the historical facts as to what took place in 1963, 1964 and 1974, and then observes as follows (p.26):

“The Prime Minister drives straight back to Downing Street and after, usually saying a few words, to the onlookers and the media from the doorstep, being the task of forming his Cabinet. It the occasion is caused by one party replacing another in forming a Government, this is a most onerous task, since the administration so formed will be basically the Government for as long as the administration lasts. All re-shuffles, however, far reaching, are changes in this team. This has proved to be so even when the Prime Minister is succeeded by one of his colleagues.”

21 (b). In Chapter III “The Cabinet at Work”, Harold Wilson refers to the concept of ‘kissing hands’, to which reference has been made by Mr. Ramaswami. He writes:

“On the first two days of a new administration, Cabinet ministers kiss hands on appointment, and any who are not already privy councilors tab the oath, or are sworn by affirmation on their appointment.

‘The Prime Minister, on being commissioned to form a Government, is announced as having ‘kissed hands’. He does not in fact do so: but is simply authorised to form and administration. The following day, he attends a Privy Council where the secretaries of State kiss hands and receive their seals of office-those not already privy councillors being sworn of the Privy Council. The Prime Minister is the first to kiss hands, as first Lord of the Treasury. (He does not in fact kiss hands, having done so the previous day as Prime Minister - or rather, having been deems to have done so)”.

21(c). The above observations of Harold Wilson show that the Prime Minister is deemed to have kissed hands on the on the previous day and that it is only on the second day that the actual Cabinet comes into being Even in England, therefore, it appears that there is an interval of time between the Prime Minister taking office and the rest of the Cabinet taking office.

22. Our Constitution undoubtedly embodies the Parliamentary or Cabinet form of government on the British model both for the Union and the States, and the fundamental principle of the English constitutional law, that the Sovereign does not act all his own responsibility, but acts on the advice of his Ministers, who command the confidence of the British House of Commons, is embodied in our Constitution, particularly in Art.163 (1). But the President and the governor are only a formal or constitutional head of the government; the real power being exercised by the Council of Ministers. The concept of collective responsibility which has grown as part of the Cabinet system is embodied, in so far as the States are concerned, in Article 164(2) of the Constitution, which provides that “the council of Ministers shall be collective responsible to the Legislative Assembly of the State”. Even though our Constitution requires that there shall be a council of Ministers to aid and advise the Governor in the exercise of his functions, except in so far as he is, by or under the Constitution, required to exercise his function or any of them in his discretion, the Constitution has also made provision in Art.166(3), which requires the Governor to make rules for the more convenient, transaction of the business of the Government of the State and for allocation among the Ministers of the said business, in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. The latter part has reference to Article 371A clauses (1) (b) and (d) and 2(b) and (f) and schedule 6 paragraph 9(2) and 18(3). In addition to these express provisions, there is Article 346 which says, by necessary implication, that the Governor is to act in his discretion when he makes a report to the President that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. There is also Article 200 which requires the Governor to reserve for the consideration of the President, any Bill, which in his opinion, if it became law, would so derogate from the power of the High Court as to endangers the position which the High Court is designed to fill under the Constitution. This Article is another instance where the Governor may act irrespective of the advice from the Council of Ministers. (Sec Samsher Singh v. State of Punjab. (A.I.R.1974 S.C.2192 at 2204)

23.. A series of decisions of the Supreme Court have settled the law that the President or the Governor cannot exercise the executive power of the State except on the aid and advice of the Council of Ministers. In Rai Sahib Ram Jawava Kapur v. State of Punjab, (A.I.R.1955 S.C.549) the Supreme Court, after observing that ordinarily the executive power connotes the residue of Governmental functions that remain after legislative and judicial functions are taken away, observed that “our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental Policy and its transmission into law, though the condition procedent to the exercise of this responsibility is its retaining the confidence of the Legislative Branch of the State.”. On a construction of the provisions of Articles 53 and 74(1) of the Constitution of India, the Supreme court held that “under Article 53(1) the executive power of the State is vested in the President, but under Article 74(1) there is to be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. The President has thus been made a formal or constitutional head of the executive and the real execution powers are vested in the Ministers or the Cabinet.” The Supreme Court then pointed out:

“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”.

It may be noted that by Constitution (42^nd Amendment Act, 1974, Art.74(1) was amended and it was made obligatory for the President to act in accordance with the advice of the council of ministers.

24. The nature of the powers of the executive once again fell for consideration before the Supreme Court in A. Sanjeevi Naidu v. State of Madras (A.I.R.1970 S.C.1102). That was a case in which the validity of a scheme framed under S.68C of the Motor Vehicles Act was eh alien zed 011 the ground that the opinion requisite under S.68C of the Act was not formed by the State Government, but was formed by the Secretary of the State in the Industries, Labour and Housing Department, acting in pursuance of the powers conferred on him under Rule 23A of the Madras Government Business Rules, which were then in force. The contention there was that under our constitutional setup the requisite opinion should have been formed either by the council of ministers or the minister to whom the business in question had been allocated under the Rules. The Supreme Court pointed out that under Art. 154 or the Constitution of India the executive power of the State vests in the Governor and under Art.163(1) in exercise of the power he has to be aided and advised by the council of ministers, with the Chief Minister at the head, but the Governor can make rules for more convenient transaction of the business of the Government of the State and for the allocation among ministers or the said business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. The Supreme court held that a minister can only deal with the business that has been allocated to him by the Governor under the Rules and he is not competent to deal with any other business, Holding that under the Rules the Secretary was a competent person to from the requisite opinion, the Supreme court once again reiterated the doctrine that under our constitution the Governor is essentially a constitutional head and the administration of the State is run by council of ministers. In paragraph 11 the Supreme Court observed as follows:

“Under our Constitution the Governor is essentially a constitutional head, the administration of the state is run by the council of ministers. But, in the very nature or things it is impossible for the council of ministers to deal with each and every matter that comes before the government. In order to obviate that difficulty the Constitution has authorised the Governor under sub-article (3) of Art.166 to make rules for the more convenient transaction of the business of the Government of the stale and for the allocation amongst its ministers the business of the government. All matters excepting those in which the Governor is required to act in his discretion have to be allocated to one or the other of the ministers, on the advice of the Chief Minister. Apart from allocating business among the ministers, the Governor can also make rules on the advice of his council of ministers for more convenient transaction of business. He can not only allocate the various subjects amongst the ministers, but may go further and designate a particular officials to discharge any particular function. But this again he can do only on the advice of the council of ministers”.

25. Theses observation, bring out the scope and nature of me rules framed under Art.166 (3) of the Constitution of India. The power of the Governor under Art.166(3) of the Constitution of India is two-fold; he has power to allocate the business amongst the ministers, and he has also power to make rules for the government.

26. It will necessarily follow that, where rules or business have been made with regard to the transaction of government business, then the advice which under Art. 163(1) of the Constitution of India is to be given by the council of ministers can validly be given by a minister to whom any business has been allocated in respect of those subjects. As a matter of fact, the executive action of the government or the State which is expressed to be taken in the name of the Governor under Art. 166(1) of the Constitution of India can also be taken when a particular decision is taken by the minister concerned in respect of the subject allocated to him or even by an official who has been designated under the Rules of Business to discharge any particular function. Once such a decision is taken by any officer, then that decision is taken by that officer not as a de legate of the minister, but as a decision taken on behalf or the government itself, and is, for all practical purposes, the decision of the council of ministers on which the Governor is supposed to have acted when that action is notified in the manner contemplated by Art.166(1) of the Constitution of India. It is settled law in England that in the administration of government, when duties are imposed upon a Minister and the powers given to the ministers are normally exercised under the authority of the ministers by responsible officials of the Department, then constitutionally, the decision of the official is, in law, the decision of the minister for which the minister is responsible. It is the minister who must answer before the Parliament for anything that the officials have done under his authority. In Carltona Ltd v. Commissioners of Works and others (1943-II A.E.R.560 at 563) the law is stated thus by Lord Greene:

“In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because Hey are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case, no doubt there have been thousands of requisitions in this country by individual minister is. It cannot mean that in each case the minister be supposed that this regulation in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for any thing that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, parliament is the place where complaint must be made against them”.

On the basis of this decision the law is stared as follows in Halsbury’s laws of England, Fourth Edition (Hailsham’s Vol.1 in paragraph 7-48)

748. MINISTERS OF THE CROWN AND LOCAL AUTHORITIES:

Where functions entrusted to a minister are performed by an official employed in the minister is department there is in law no delegation because constitutionally the act or decision of the officials is that of the minister”.

28. The same is the law in India. When Article 164(2) declares that the council of ministers shall be collectively responsible to the Legislative Assembly of the State, it does not mean that each and every decision must beta ken by the Cabinet. If a decision is taken by an official who is empowered under the rules of business to deal with certain subjects, that decision is in fact the decision of the government. This is clear from paragraph 12 of the judgment of the Supreme Court in Sanjeevi Naidu’s case. The Supreme Court also quoted with approval the passage from Halsbury’s Laws of England reproduced above in paragraph 18 of the judgment, where the Supreme Court observed as follows:

“As mentioned earlier in the very nature of things, neither the council of ministers nor an individual minister can attend to the numerous matters that come up before the government. Those matters have to be attended to and decisions taken by various levels. When those officials discharge the functions allotted to them they are doing seas limbs of the government and not as persons to whom the power of the government had been delegated. In Halsburv Laws of England, Vol.1 3^rd End. at page 170, it is observed:

“Where functions entrusted to a minister are performed by an official employed in the minister’s department, there is in law no delegation because constitutionally the act or decision of the official is that of the minister”

The Supreme Court also endorsed a similar view expressed in the Principles of Administrative Law by Giffith and Street, and of Sir Ivor Jennings in his Cabinet government.

29. The nature of the executive power of the Union Government and the State Government and the object and purpose of the Business Rules were onceagain examined by the Supreme Court in Samsher Singh’s case (1943-II A,E,R,560) Referring to the provisions of Articles 77(3) and 166(3) of the Constitution of India, which provided for making rules for the more convenient transaction of the business of the government, and the allocation of business among the ministers of the said business, the Supreme Court in paragraph 30 observed as follows:-

“The rules of business and the allocation among the ministers of the said business all indicate that the decision of any minister or officer under the rules of business made under these two Articles viz., Article 77(3) in the case of the President, and Article 166(13 in the case of the Governor or the State, is the decision of the President or the Governor of the State respectively”.

30. The Supreme court also held that the rules of business and allocation of business among the ministers are relatable to the provisions contained in Article 53 in the case of the President and Article 154 in the case of the Governor and that the executive power shall be exercised by the President or Governor directly or through officers subordinate to them. Referring to the provisions of Articles 74 and 163 of the Constitution of India, the Supreme court pointed out that those provisions are for the discharge of the executive powers and functions of the government in the name of the President or the Governor, and once again the decision in the court of appeal in Carltona Ltd v. Commissioners was cited with approval.

31. In Samsher Singh’s Case, the Supreme Court expressly approved of the law laid down in Ram Jawaya Kapur’s Case, Sanjeevi Naidu’s Case and U.N.R. Rao’s case, that the powers of the President and the powers of the Governor in India are similar to the powers of the Crown under the British Parliamentary system. After referring to all these cases, it was pointed out that the executive power of the Union is vested in the President and the President is the formal or constitutional head of the executive, and the real executive powers are vested in the ministers of the Cabinet. The position of law, that, when a civil servant takes a decision, he does not do it as delegate of the minister and that he does it on behalf of the government and further, where functions are entrusted to a minister and they are performed by an official employed in the ministry ‘s department, there is in law no delegation, because constitutionally the act or decision of the official is that of the minister, is reiterated in para 35 of the judgment, The Constitutional position that, where rules of business have been made, the decision of the minister or the officer concerned is the decision of the President or Governor respectively, has again been reiterated in paragraph 48 of the judgment, which reads as follows:-

“The President as well as the Governor is the constitutional or formal head. The President as well as the Governor exercises his powers and functions under the Constitution on the aid and advice of his council of ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor, but the satisfaction of the President or Governor in the constitutional sense in a cabinet system of government, that is, satisfaction of his council of ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any minister or officer under rules of business made under any of these two Articles 77 (3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of minister or officer under the rules of business is the decision of the President or the Governor”.

32. In paragraph 57 of the judgment it was clarified that neither the President nor the Governor is to exercise the executive functions personally.

33. In a separate but concurring judgment Krishna Iyer, J., also took the view that the President and the Governors were constitutional heads of the executive and that the real executive power was vested in the council of ministers. The view taken by Mr. Seervai in his constitutional Law of India was approved by the learned judge, when he observed as follows: (Paragraph 118):

“Seervai and other jurists take the view the our constitution had adopted the English system of parliamentary executive, that the President and the Governor were constitutional heads of the executive and that real executive power was vested in the council of ministers”.

The nature of the power of the President to act on the aid and advice of the council of ministers has been lucidly put as follows in paragraph 121 of the judgment:

“We have extensively excerpted from various sources, not for adopting quotational jurisprudence’, but to establish that the only correct construction can be that in constitutional law the functions of the President and Governor and the business of Government belong to the Ministers and not the head of State, that aid and advice of ministers are terms of art which in law mean in the cabinet context of our constitutional scheme that the aider acts and the adviser decides in his own authority and not subject to the power of President to accept or reject such action or decision except in the case of Governors to the limited extent that Art.163 permits and his discretion, remote controlled by the centre, has play”

34. Construing the provisions providing for the making of rules of business and the requirement of the president to act on the aid and advice of the council of ministers, Krishna Iyer, J., observed as follows:

“We are of the view that the President means, for all practical purposes, the ministers or the council of ministers, as the case may be, and his opinion, satisfaction or decision is constitutionally secured, where his ministers arrived at such opinion, satisfaction or decision”.

35. Krishna Iyer, J., pointed out that the provision relating to the allocation of portfolios and the making of rules of business is only a methodology of working out the cabinet process. In paragraph 151 of the judgment he observed:

“Certainly the key words of wide import in the fasciculus of Articles relating to the President and Governor are functions (Articles 74 and 163) and business and allocation of portfolios, rules of business and delegation to subordinate officials are but the methodology of working out the cabinet process.

36. The law with regard to the constitutional position of the President and the Governor was declared by Krishna Iyer, J., in paragraph 153 as follows:

“We declare the law of this branch of our constitution to be that the President and Governor, custodians of an executive and other powers under various Articles shall, by virtue of these provisions exercise 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 the 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 ………”

37. In U.N.R. Rao’s case, on which reliance has been placed by Mr. Ramaswami, the Supreme court has taken the view that the provisions of Art. 71(1) which are analogous to Art.166(1) are mandatory and therefore the President cannot exercise the executive power without the aid and advice of the Council of Ministers, and any exercise of executive power without such a id and advice would be unconstitutional in view of Article 53(1) of the Constitution. In U.N.R. Rao’s case the House of the People was dissolved under Art. 85(2) of the Constitution and the contention of the petitioner was that as a result of this dissolution the Prime Minister and other Ministers ceased to hold office, and because council of Ministers was to be collectively responsible to the House of the People under Article 75(3) of the Constitution of India, when the House of the People itself was dissolved, there could not be a Council of Ministers responsible to the House of the People. The Supreme Court took the view that under Art.75(1) of the Constitution of India the President appoints the Prime Minister and appoints the others Ministers on the advice of the Prime Minister and under Art.75(2) they all hold office during the pleasure of the President But the President has not stated that it was his pleasure that the Prime Minister shall not hold office. The Supreme Court took the view that Art. 75(3) would apply only when the House of the People does not stand dissolved or prorogued, and that, since under Art.74(1) it was obligatory that there shall be a Council of Ministers with the Prime Minister at the head, and the President could not exercise executive power without the aid and advice of the Council of Ministers, the provisions of Art. 75(3) have to he harmonised with Art.74(1) and Art.75(2).

38. This decision was followed by the Supreme Court in K.N. Rajagopal v. M.Karunanidhi, and it was held that, though the Legislative Assembly stood dissolved, the Chief Minister and the cabinet were entitled to continue in office.

39. Mr. Ramaswami has vehemently contended, relying on these two decision, that by parity of reasoning Art. 163(1) of the Constitution must also be construed as mandatory and that any exercise of executive power in the absence of a council of Ministers should be held to be unconstitutional. At the outset it pas to be remembered that in U.N.R. Rao’s case the Supreme court was concerned with the question whether, having regard to the Rules of Business made by the President under Art. 73(3) of the Constitution of India, the Prime Minister alone, without the Council of Ministers, was entitled to perform the functions of the government. The controversy which arises in the instant case is different from the controversy in U.N.R. Rao’s case. The question as to how far under the Rules of Business the Prime Minister was entitled to perform the functions of the government did not at all fall for consideration before the Supreme Court. It is also important to note that the Supreme court had taken the view that Art.75(3) of the Constitution, which provided for collective responsibility of the Council of Ministers, to the House of the People, did not have application where there is no House of the People, as it is dissolved or prorogued. The necessary inference from this must be that, notwithstanding the mandatory language of Art.77(3) for which the corresponding provisions in relation to the States is Art.166(3), there can be a situation where these provisions are not attracted at all.

40. Now, undoubtedly, the provisions of Art. 163(1) of the Constitution are mandatory in character, but we must harmonise the provisions of Article 163(1) with Art.164(1) and Art.164(2). Under Art.164 (1) the Chief Minister has to be appointed by the Governor on the advice of the Chief Minister, and the Ministers hold office during the pleasure of the Governor in the Parliamentary system of government, the Prime Minister at the centre and the Chief Minister in the state occupy a unique position, and, where a political-party has secured a majority in the Parliament or the State Legislative, as the case may be, the accepted principle is that the majority is entitled to form a government. The leader of the majority party becomes the Chief Minister in a State and is called upon by the Governor to nominate his ministers by virtue of the fact that he is the leader of the majority party in the Legislature. Though at one time the Prime Minister in England was described as primus inter pares, in fact, he occupies a position which is one of exceptional authority. Sir Iver Jennings in his Cabinet Government (Third Edition) quotes what Lord Morley has to say about Walpole as Prime Minister. At page 179 the learned author states:

“Although in Cabinet all its members stand on an equal footing, speak with equal voice, and, on the rare occasions when a division is taken, are counted on the fraternal principle of one man one vote, yet the head of the Cabinet is primus inter pares and occupies a position, which, so long as it lasts, is one of exceptional and peculiar authority”.

At page 180 Lord Morley is quoted as follows:

“The flexibility of the Cabinet system allows the Prime Minister to take upon himself a power not inferior to that of a dictator, provided always that the House of Commons will stand by him”.

At page 188, the learned author observes:

“Sir William Harcourt thought that Lord Morley’s estimate of the powers of the Prime Minister was exaggerated. He agreed that, though theoretically he is primus inter pares, he should in reality be inter stellas luna monires’. But he said that in practice the thing depends very much upon the character of the man’. Lord Oxford and Asquith said the same: ‘the office of Prime Minister is what its holder choose to make it”.

The position of the Prime Minister is described by John P. Mackintosh in the Government and Politics of Britain (5^th Edition) at page 38 as follows:—

“Nevertheless within the political machine, the Prime Minister dominates. He chooses his colleagues and while the may be limited by the need to take in certain popular of impressive figures his own position is almost totally secure and the position of his lieuranants is open to change. They can, with only a few exceptions, be demoted or dismissed. Prime Ministers occupy a lonely pinnacle and, if the Government’s fortunes are low, there will be criticism of their leader ship from within the ranks at’ their party in Parliament”.

At page 68 the learned author points out that the Prime Minister can decide when and what the cabinet will consider. At page 71 the learned author has observed as follows:

“Thus in both institutional and personal terms the relations between Prime Ministers and their senior colleagues are complex, but normally, emphasize and reflect the former’s position of authority, As Sir Anthony Eden has put it:

. “A Prime Minister is still nominally primus inter pares, but in fact his authority is stronger than that. The right to choose his colleagues, to ask for a dissolution of Parliament and, if he is a Conservative, to appoint the Chairman of the party organisation, add things to a formidable total of power. (Full Circle p.269).

Lord Butler’s comment was that:

‘I think that on the whole the Prime Minister has tended to stop being an equal among equals. There is a tendency not exactly to dictatorship ... but to be the leader who, does control everything, and things are getting more and more into his own hands, (The Listner, September, 1965).

42. Since our Constitution has adopted Parliamentary democracy and the Cabinet form of Government, the discussion of the position of the Prime Minister given above will be equally applicable in the case of the Chief Minister who has been so appointed, being the leader of the majority political party.

43. When the Chief Minister is to advise the Governor with regard to the appointment of the other ministers, the Chief Minister is required to pick a team, and, as Sir Ivor Jennings put it in The Queen’s Government (at page 137):

“He must pick a team and keep it as a team. A team of politicians is probably the most difficult to handle because, though each of them knows that his political future depends on the success of the team, there will usually be a few who are anxious to become captain”.

44. Referring to the choice or ministers, Prof. Harold Laski in “Parliamentary Govt. in England, observes:

“Obviously enough, the choice or colleagues must, apart from the small group who nominate themselves, be an invidious task for any Prime Minister; and those who are excluded will rarely be able to see that the grounds upon which there have been preferred are adequate. The Prime Minister has to do the best he can. He is seeking to build a corporate entity the members of which will be collectively responsible for one another’s acts. In general, he will, unless he makes some colossal blunder of omission, have the loyalty of his party behind him in the decisions he makes and that loyalty will continue unless the Cabinet, as it works, proves a defective arrangement which needs strength being by reason of the opposition it encounters in the House of Commons.

45. While referring to the powers or the Prime Minister, John. P. Mackintosh in his “The British Cabinet” says (page 435):

“Turning to the powers or a Prime Minister, the first is his right (Lloyd George called it a ‘prerogative to chose the other ministers”.

46. The Prime Minister or Chief Minister, the leader of the majority political party in the Legislature has to apply his mind to several important considerations for the purpose of a selecting his colleague>; in the council of ministers. Some of them have been referred to by Harold Wilson in his “The Governance’ of Britain”. Harold Wilson writes (page 30):

“The Prime Minister forming his cabinet, no less in appointing ministers of State and Parliamentary under-secretaries or state, has to use all the qualities he is presumed to have in order to have reached the position he holds”.

Among the essential qualities he enumerates the following:

(1) He needs a good memory of his colleagues, specializations and past experience, or any tendencies to weakness in a crisis.

(2) The Prime Minister must pay full regard to preserving a real balance in the party in Parliament and in the country;

(3) He must concentrate on the doctrine of horses for courses, not only in using the specialist knowledge of individual ministers, but also in reflecting the changing priorities of national and international relationships.

(4) Cabinet and other ministerial appointments should reflect a real report with the party nationally, and above all in the country”.

47. We have reproduced the above observations in extenso and referred to the views of Harold Wilson to indicate that, in the very nature of things, the leader of the majority party who is designated as the Prime Minister of Chief Minister, has to take several considerations into account so as to have a homegeneous Council of Ministers, and this would necessarily involve a process consuming some time. It appears to us that an interval of time between the appointment of the Chief Minister and the submission of a list of other ministers of his Cabinet to the Governor is implicit in the very system of the Cabinet form of Government, having regard to the task which the Chief Minister is called upon to perform while finally deciding upon the names of the members of his council of ministers. Having regard to what we have said earlier, and the views of the different authors given above, we must assume that the framers of the Constitution were aware of the fact that in a democratic system of Government the leader of the majority party in the Legislature would necessarily require Some time he finally submits the list of persons who are to form his council of ministers. Accordingly the provision made in Art 164 of the Constitution of India that the other Ministers shall be appointed by the Governor on the advice of the Chief Minister must necessarily be so construed as to enable the Chief Minister to have sufficient time to decide upon who his other colleagues shall be in the council of ministers.

48. It is undoubtedly true that even before being sworn-in as Chief Minister, the leader of the majority party in the Legislature may be in a position to nominate his other colleagues in the party, who should be appointed as Minister. But it is also equally important to remember that a Chief Minister who has been so appointed by the Governor will be entitled as Chief Minister to decide who would be his other ministers. This process is bound to take some time, in the very nature of things. and, therefore, when Article 164(1) contemplated that the Chief Minister shall be appointee first, and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, we must read into this provision the intention on the part of the framers of the Constitution that the Chief Minister would have available to him a reasonable period of time during which he shall consider who should be the other Ministers to be appointed. Such a construction of Art.164(1) of the Constitution would, in our view, not be violative of the mandatory requirement under Article 163(1) read with the Rules of Business made by the Governor under Art. 166(3) of the Constitution, nor would it, as we shall presently show, be inconsistent with the doctrine of collective responsibility incorporated in Art.164(2) of the Constitution.

49. It has to be realised that the appointment of the Chief Minister after fresh elections to the Legislature would be inconsistent with the continuation of the Care-taker government, which has a right to continue in office only until the new Chief Minister is appointed. The acceptance of the resignation of the Chief Minister and his other Cabinet Minister is a pre-condition for the appointment of the new Chief Minister, where fresh elections to the Legislative Assembly have taken place, as in the instant case. If in his context we now read the mandatory provision in Art. 163(1), that there shall be a council of ministers with the Chief Minister at the head to aid and advise the Governor, with the Rules of Business framed under Art.166(3) of the Constitution of India, it appears to us to be clear that, after being appointed as Chief Minister, the Chief Minister can perform such of the functions as are permitted to be performed by him under the Business Rules. It is not in dispute that on 10^th February 1985, when the 2^nd respondent was appointed as Chief Minister, the Business Rules of 1978 were already in force. Rule 5 of the Business Rules, which authorised the Governor to allot business of the government among the Ministers by assigning one or more departments to the charge of a minister, would come into operation only after the ministers are appointed. The question is what happens in the interval of time between the appointment of the Chief Minister and the appointment of the other ministers. The residuary clause (liv) in Rule 35(1) (a) and Rule 35(4) clearly, in our view, enables the Chief Minister to require any case to be submitted to him, and in the absence of other ministers, the Chief Minister would be entitled to exercise executive power in respect of such of those matters which he requires to be submitted to him. Any other construction of the provisions of Art.163(1) of the Constitution of India, read with Art. 164(1), in the light of the Rules of Business, is likely to bring the government to a stand still. The governance of the State is a continuous process in which there cannot be a break. It does not brook a vacuum. No provision of the Constitution can be so construed or interpreted as to bring the government to a standstill.

50. It has been pressed upon us that the cabinet must consist of more than one person, that is, there must, at least, be one more minister apart from the Chief Minister to form a cabinet and then only the Chief Minister can properly function under the Constitution as head of the government. Now, in the parliamentary form of government it is permissible to have a minister without portfolio. “Ministers without portfolio are, nevertheless, not uncommon”, observes Sir Iver Jennings in his ‘cabinet Government’ (Page 73), and he gives the illustration of the Duke of Wellington having sat in the cabinet of 1841 to 1846 and in the House of Lords, without office, and in 1852 Lord John Russel refused to take office, and insisted on leading the House of Commons. In India also, a minister without portfolio is not unknown.

51. The appointment of a minister without portfolio will undoubtedly result in having a council of ministers as contemplated under Art 163(1) or the Constitution of India, but if the argument or the petitioners is right, then even if there is a Chief Minister and a minister without portfolio and the minister without portfolio is not allocated any department, the Chief Minister will not be entitled to perform the executive functions of the government. In a case where there are a Chief Minister and one or two ministers without portfolio also, are the constitutional provisions to be so construed as to render the whole machinery of government ineffective and incapable of taking any decision or executive action? It must necessarily follow that where at some point of time when there is a cabinet consisting of the Chief Minister and one or two ministers without portfolio the functions of the government will have to be performed by the Governor only on the advice of the Chief Minister because under the Rules of Business he will be entitled to deal with all the subjects which would otherwise have been allocated to the other ministers. If in such a case the Chief Minister is entitled to perform the executive functions of the government, then we do not see why pending the appointment of the other ministers he cannot act under the Rules of Business and have such of the cases as require urgent attention submitted to him. We are therefore inclined to take the view that, on the appointment of the Chief Minister, and during the interregnum, when the Chief Minister is considering the names of persons to be recommended to the Governor for appointment as ministers, the Rules of Business would enable the Chief Minister to deal with all such subjects which he chooses to deal as requiring the urgent attention of the government. The decision on such matters taken by the Chief Minister will be the decision of the Governor, having regard to the Rules of Business, and such executive action will have to be expressed to be taken in the name of the Governor as contemplated by Art.166(1) of the Constitution of India. We are therefore unable to find any constitutional infirmity in the direction issued by respondent No. 2 to the Chief Secretary: “Chief Secretary to send urgent and time bound files for my orders”.

52. It has been argued both by Mr. Ramaswami and Mr. Dalawai that by permitting the Chief Minister to perform the executive functions without having a council of ministers, the doctrine of ‘collective responsibility’ constitutionally incorporated in Art.164(2) of the Constitution would be breached, because Art.164 (2) refers to the Council of Ministers being collectively responsible to the Legislative Assembly of the State.

53. Now firstly on the day on which the Chief Minister was sworn in and till the other Ministers were sworn, there was in law no Legislative Assembly, which met for the first time much later. Secondly, it has to be remembered that the doctrine of ‘collective responsibility’ is basically political in origin and nature. The object of this doctrine is to make the whole body of the council of Ministers collectively responsible for the act of every minister, so that once a decision has been taken on behalf of the government in the exercise of its executive function, even though a particular ... individual minister is not a party to that decision, he has to share the responsibility for that decision and has to support that decision in the Legislature. The principle of ‘collective responsibility’ has been evolved in England since 1688 and it rested on convention alone, This principle has been set out in “Constitutional Law” by Wade and Phillips, Seventh Edition, at page 84, as follows:—

“DEVELOPMENT OF COLLECTIVE RESPONSIBILITY”

“To return 10 the conventional meaning of ministerial responsibility, it is not the fear of legal liability but the desire to operate the machinery of government on constitutional lines which influences ministers in their conduct of affairs and their relationship with Parliament”.

“Accordingly there has been evolved since 1688 the rule of collective responsibility which rests upon convention alone. During the greater part of the eighteenth century the cabinet was still a body of holders of high office whose relationship with one another was ill-defined, and thus the body as a whole was not responsible to Parliament”.

54. Referring to the manner in which the King’s Government worked in Britain, the learned authors notice the fact that except relatively homogeneous ministers under Walpole’s pre-eminent leadership, cabinets were formed of different groups with many different aims, which made collective responsibility impracticable. The Kina sometimes consulted those who were out of office without the prior approval of his Ministers. The Representation of the People Act, 1832 (the Great Reform Bill), observe the authors, brought realisation that for the future the Executive must hold the same political views as the majority in Parliament, and the cabinet, all its members united by parties, became the definite link between the King and Parliament and so acquired the whole control over the direction of public affairs. The Learned authors then observe as follows:—

“Thus collective responsibility developed later than political responsibility of individual ministers. Just as it became recognised that a single minister could not retain office against the will of Parliament so later it became clear that all Ministers must stand or fall together in Parliament, if the government was to be carried on as a unity rather than by a number of advisers of the Sovereign acting separately.

55. Observing that by the middle of the nineteenth century collective responsibility, as it is understood today, was firmly established, the authors quote what Lord Salisbury said in 1878 (pages 85-86):

“For all that passes in Cabinet every members who does not resign is absolutely and irretrievably responsible and has no right afterwards to say that he agreed in one case to a compromise, while in another he was persuaded by his colleagues ... It is only on the principle that absolute responsibility is undertaken by every member of the cabinet, who, after a decision is arrived at, remains a member of it, that the joint responsibility of ministers to Parliament can be upheld and one of the most essential principles of parliamentary responsibility established”.

56. Pointing out that collective responsibility does not require that every cabinet minister must take an active part in the formulation of policy nor that his presence in the cabinet room is essential whenever a decision is taken and that his obligations may be passive rather than active when the decision does not relate to matters falling within his own sphere of administrative responsibility, it is observed by the authors as follows:—

“Collective responsibility does, however, mean that a cabinet minister and his Parliamentary Secretary must vote with the Government in Parliament and, if necessary, be prepared to defend its policy. Neither in Parliament nor outside can a minister be heard to say that he is in disagreement with a cabinet decision or for that matter with a decision of a colleague taken without reference to the Cabinet”.

57. Prof. Harold Laski in his ‘Parliamentary government in England,’ cited supra, after referring to the observations of Lord Salisbury quoted above, observed, with regard to collective responsibility as fellows (pp. 255-256):

“A Minister, therefore, must accept a Cabinet decision or resign, and, if he does not resign, it is no less his decision then that of his colleagues even if he protested against it in the cabinet. He must, that is to say, vote for the decision in Parliament and, if necessary, defend it there or on the public platform. Mr. Gladstone, indeed, took the view that the absence of a minister from a division should be censured, and this appears to apply even to junior ministers not in the cabinet. The implication goes even further. A Minister must not make a speech contrary to cabinet policy ... The cabinet is by nature a unity; and collective responsibility is the method by which by which this unity is secured”.

58. Professor Laski points out that the rule of collective responsibility is not only a salutary rule, but it is also a necessary rule and that there is no other condition upon which that teamwork which is of the essence of the cabinet system becomes possible. Professor Laski then observes as follows (p. 257):

“This leads us to the conclusion that the secret of collective responsibility is, in all norm al circumstances, the fact that the cabinet is rooted in the party-system. It is its party-complexion that gives it its unity of purpose. It is its party complexion, also, that provides the sanctions by which that unity of purpose is maintained. The party assures the presence in the cabinet of likeminded men with similar objects who will contemplate from a similar angle the problems they will have to deal with”.

59. Thus the whole object of’ the principle of collective responsibility, which is now incorporated as a provision in the Constitution in Art.164 (2) is to enable the Council of Ministers to function as a unit and to enable the cabinet government to follow a policy which commands a majority in the Legislature.

60. John P. Mackintosh in his British Cabinet says this about collective responsibility. (pp. 520-521):

“Collective responsibility likewise has, several meanings which become entangled. In one sense, it refers to the fact that all members or a government are expected to be unanimous in support of its policies on all public occasions. This is in part because divergencies among leading members of a government afford such wonderful openings to its opponents and are such evidence of disharmony that they cannot be tolerated. But there was and is feeling that men working together to guide national affairs ought either to be in sufficient agreement to give genuine advocacy to collective decisions (despite differences at the formative stage) or should resign”.

61. Sir Ivor Jennings in his Queen’s government writes (at page 121):

“Collective responsibility means, then, that an attack on a minister is an attack on the government. The defeat of a minister is the defeat of the government. It also means that the members of the cabinet express a common opinion. To use a phrase said to have been used by Lord Melbourne, Queen, Victoria’s first Prime Minister, ‘they must all be in the same story”.

62. The learned author further writes: Collective responsibility covers more than the decisions of the cabinet. Matters are not taken to the cabinet unless they are of sufficient political importance or they involve conflicts of opinion between Departments which cannot be settled at lower levels. Questions which do not come within these categories are decided by Ministers or by civil servants on their behalf. We have already seen that decisions are taken by civil servants on behalf of their Ministers and that the decisions of ministers are taken on behalf of the cabinet ... It follows from the principle of collective responsibility that Parliamentary criticism ought to be directed not against a civil servant or a minister, but against the government as a whole”.

63. The essence or collective responsibility is described by Sir Ivor Jennings at page 124 as follows:

“What it means in theory is the, if the House of Commons disapproves of the action of the governor, or of any part of it, the House can express its lack of confidence in the government and campel it either to resign or to dissolve Parliament. Given the party system, however, this is something of a fiction. In all normal circumstances the majority will support the Government because it is a party majority and the government is a party government. The opposition has no real hope of defeating it in Parliament; what it hopes to do is °to defeat it in the constituencies at the next opportunity”.

64. The principle of collective responsibility, therefore, has essentially for its object the maintaining of the strength and unity of the party which will ensure a stable government with a unity of purpose to carry out the policies of the majority party.

65. Therefore even assuming that the principle of collective responsibility would come into operation after the State Legislative Assembly was duly constituted after 13^th February, 1985, when the 2^nd respondent took certain decisions during the period from 10^th February, 1985 to 13^th February, 1985, his decisions and actions being actions of the government, notwithstanding the fact that at the material time the cabinet was not in existence, he would still be answerable to the Legislature for the actions and decisions taken by him. The construction which we have placed on Art.163 (n of the Constitution does not relieve either the Chief Minister or the Council of Ministers which he later on formed, from the principle of collective responsibility contained in Art.164 (2) of the Constitution of India.

66. Mr. Ramaswami has contended that, if we hold that the decisions taken by the Chief Minister during the period from 10^th February, 1985 to 13^th February, 1985 were not invalid, that might enable a Chief Minister to continue to function alone for an unlimited period of time without having a council of ministers. Such an assumption, in our view, will be wholly unjustified. Extreme propositions are not all ways of assistance for finding a solution to a problem of a legal or constitutional nature. in a Parliamentary democracy with the cabinet form of government, the leader of the majority party is normally expected to act with a sense of responsibility and within the framework of the Constitution with full awareness of his duties and obligations under the Constitution and his obligation to the elected body of the representatives of the people who constituted the elected Legislature. If, however, within a reasonable time which the Governor may grant to enable the Chief Minister to decide upon the personnel of his cabinet, the Chief Minister does not nominate his Ministers and intimate their names to the Governor, the Governor, in whom is vested the power to see that the State is administered in accordance with the Constitution, cannot be said to be helpless in the matter. In a given case, the Governor could even resort to his power under Art.356 (1) of the Constitution of India, if he is satisfied that the Government of the State can not be carried on in accordance with the Constitution.

67. The learned Advocate General, along with the counter affidavit, has given in a list of several instances which showed that between 1977 and 1985, normally, it was only the Chief Minister who had been sworn in and the other ministers have always been sworn-in in the States a few days thereafter. The instances are as follows:—