By Lokendra Malik, Advocate, Supreme Court of India
Published On: April 30, 2022 at 09:38 IST
The President of India appoints the Prime Minister from a political party that secures the support of a majority in the Lok Sabha, the popular chamber of Parliament because the Council of Ministers is collectively responsible to the Lok Sabha as per Article 75(3) of the Constitution. In our parliamentary democracy, the Lok Sabha is the powerhouse of the elected government.
The moment the Lok Sabha expresses its lack of confidence in the government, the government headed by the Prime Minister comes out of power. The President ensures that the Council of Ministers retains the support of a majority in the Lok Sabha and whenever the President is in doubt about the government’s majority support, he can ask the Prime Minister to prove his majority in the Lok Sabha and the Prime Minister will be duty-bound to prove it in the House.
This is the basic principle of parliamentary democracy as envisaged under our Constitution.
Once appointed to his office, the Prime Minister leads the elected government according to his wisdom and constitutional norms. He chooses his ministerial colleagues and sends their names to the President for appointing them to the Council of Ministers as per the constitutional provisions mentioned under Article 75 of the Constitution.
The President is bound to act on the advice of the Prime Minister in appointing ministers and allotting them portfolios on the recommendation of the Prime Minister.
A minister can enjoy his office only until he/she secures the support of the Prime Minister, the head of the Council of Ministers. At any time, the Prime Minister can recommend to the President to remove a minister without assigning any reason and the President is bound to sack a minister immediately.
Thus, the Prime Minister is the undisputed real head of the Union Government who chooses the ministers and also drops them as and when he thinks it appropriate.
There is hardly any situation when the President can intervene in the appointment and removal of ministers. However, if a minister is ineligible to become a Member of Parliament, the President can ask the Prime Minister to drop his/her name from the list of ministers and the Prime Minister would have to take such a view seriously.
In addition, if a minister does not become a Member of Parliament for six months from the date of his/her appointment, he/she ceases to be a minister.
So, the Prime Minister is the boss of ministers, not the President. He is the captain of the elected government. He finalizes the agenda of the government and supervises the functioning of his ministerial colleagues.
Whenever the Prime Minister resigns from his office, the entire Council of Ministers goes out of office. Thus, the Prime Minister is the chief spokesperson of the Council of Ministers and has the power to reconstitute it according to his political convenience and requirements.
Time and again, several constitutional pundits, scholars, legal thinkers, and political commentators have raised the issue of the criminalization of politics and the appointment of tainted ministers in the Centre and the States. It is widely believed that persons having criminal antecedents should not be made ministers as they give a bad name the entire government.
But the Constitution has no provision to stop the appointment of a tainted minister, and many such persons occupy ministerial positions as and when they get opportunities in the Centre/States.
They take the benefit of a well-known criminal jurisprudence prescribing that a person is deemed to be innocent unless and until convicted by a court of law. In India, the trial takes too much time and the politicians get the benefit of our slow judicial process. Very few Prime Ministers keep tainted politicians out of power, particularly in coalition governments.
However, the Prime Minister, having a clear majority in the House has all the powers and wisdom to reject the tainted persons and save the reputation of his government as well as the political party.
In 2014, the issue relating to the appointment of tainted ministers came before the Supreme Court in the Manoj Narula v. Union of India case but the Apex Court failed to lay down proper guidelines to stop the entry of tainted politicians into the ministries.
The Court heard all the arguments of the parties, analyzed various constitutional concepts and principles but expressed its inability to sanitize the national polity. A five-judge Constitution Bench headed by then Chief Justice of India R. M. Lodha decided the case.
The majority of the Court observed that “when there is no disqualification for a person against whom charges have been framed in respect of heinous or serious offences or offences relating to corruption to contest the election, by interpretative process, it is difficult to read the prohibition into Article 75(1), or for that matter, into Article 164(1) to the powers of the Prime Minister or the Chief Minister in such a manner. “
“That would come within the criterion of eligibility and would amount to prescribing an eligibility qualification and adding a disqualification which has not been stipulated in the Constitution. In the absence of any constitutional prohibition or statutory embargo, in our considered opinion, cannot be read into Article 75(1) or Article 164(1) of the Constitution”.
In the above-mentioned case, the Supreme Court refused to devise any guidelines regarding the prohibition of appointment of tainted ministers and left the issue to the wisdom of the Prime Minister. The Court observed that the Prime Minister has the choice to select the ministers keeping in view the constitutional trust reposed in him by the people of the country and he should keep this in his mind. But this suggestion had no legal force.
The majority of the Court observed as follows: “Thus, the word “advice” conveys formation of an opinion. The said formation of an opinion by the Prime Minister in the context of Article 75(1) is expressed by the use of the said word because of the trust reposed in the Prime Minister under the Constitution. The repose of the faith in the Prime Minister by the entire nation under the Constitution has expectations of good governance which is carried on by ministers of his choice.
It is also expected that the persons who are chosen as ministers do not have criminal antecedents, especially facing trial in respect of serious or heinous criminal offences or offences pertaining to corruption. There can be no dispute over the proposition that unless a person is convicted, he is presumed to be innocent but the presumption of innocence in criminal jurisprudence something altogether different, and not to be considered for being chosen as a minister to the Council of Ministers because framing of charge in a criminal case is totally another thing. Framing of charge in a trial has its own significance and consequence.
Setting the criminal law into motion by lodging of an FIR or chargesheet being filed by the investigating agency is in the sphere of investigation. Framing of charge is a judicial act by an experienced judicial mind. As the debates in the Constituent Assembly would show, after due deliberation, they thought it appropriate to leave it to the wisdom of the Prime Minister because of the intrinsic faith in the Prime Minister. At the time of framing of the Constitution, the debate pertained to conviction.
With the change of time, the entire complexion in the political arena as well as in other areas has changed. This Court, on number of occasions, as pointed out herein-before, has taken notice of the prevalence and continuous growth of criminalization in politics and the entrenchment of corruption at many a level. In a democracy, the people never intend to be governed by persons who have criminal antecedents.
This is not merely a hope and aspiration of citizenry but the idea is also engrained in apposite executive governance. It would be apt to say that when a country is governed by a Constitution, apart from constitutional provisions, and principles of constitutional morality and trust, certain conventions are adopted and grown”.
Given the above discussion, it is submitted that the Court has only taught the lessons of ethics, constitutional morality, and good governance to the Prime Minister and failed to prescribe some guidelines to eliminate the problem of criminalization of politics. Undoubtedly, the Prime Minister has absolute discretion and choice in selecting his ministerial colleagues and the President is bound to accept his decision, the Court should also have said something with adequate legal force.
It is well-known that the President cannot override the Prime Minister’s choice. But Prime Minister’s discretion needs to be in the interest of the people, who have reposed trust in him and the Court should have persuaded the Prime Minister to take this issue seriously.
The Court has rightly stated in Manoj Narula case, “in a controlled Constitution like ours, the Prime Minister is expected to act with constitutional responsibility as a consequence of which the cherished values of democracy and established norms of good governance get condignly fructified. The framers of the Constitution left many a thing unwritten by reposing immense trust in the Prime Minister. The scheme of the Constitution suggests that there has to be an emergence of constitutional governance which would gradually grow to give rise to constitutional renaissance”.
Let us hope that the Prime Minister take these words seriously to promote good governance in the country.
The Court made it abundantly clear that the Prime Minister enjoys a great magnitude of constitutional power and it is expected that he will act in the interest of the national polity of the nation-state. The Prime Minister has to bear in mind that unwarranted elements or persons who are facing charge in certain category of offences may thwart or hinder the cannons of constitutional morality or principles of good governance and eventually diminish the constitutional trust.
Finally, the Court refused to prescribe any prohibition for the appointment of tainted ministers and left it to the wisdom of the Prime Minister. Hopefully, the observations made by the Apex Court would persuade the Prime Minister to choose persons of good character, integrity, and credibility for his team of ministers, the Cabinet. Tainted ministers do not deserve a space in the government.
Let me conclude this note with these thought-provoking words of Dr. Bhimrao Ambedkar: “I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot.”
“ The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive, and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics”.