Not swearing-in by the rulebook
There is no provision to suggest that the death of a serving chief minister has the automatic legal effect of dissolving the cabinet or diluting the initial appointment of each minister, writes Abhishek Singhvi.india Updated: Sep 13, 2009 21:22 IST
Now that each member of the Andhra Pradesh cabinet has already taken the oath of office a second time, the legal issues arising from Y.S. Rajasekhara Reddy’s death have receded. But the larger constitutional issue remains: is it obligatory for each member of an existing Council of Ministers to take the oath a second time upon the sudden demise of the head of that council — the chief minister?
The answer to this somewhat novel constitutional question is in the negative. There is no explicit or implied constitutional or statutory provision prescribing any procedure for a second oath upon the sudden demise of the chief minister. Further, no provision or court judgement suggests that the sudden departure of a chief minister has the automatic or inexorable legal effect of dissolving the cabinet or diluting the initial appointment of each minister. Dissolution, in any event, is a concept relevant for legislatures and not to a council. If the existing Council is neither legally nor factually dissolved, it is inexplicable as to why its existing members require fresh validation through a fresh oath.
Each member of the council secures legitimacy by virtue of his/her original oath and the oath taken separately by the earlier (deceased) chief minister has no effect or consequence upon the validity of the oath taken by other members of the Council. So, it is not as if, upon the sudden demise of the existing chief minister, a legal or factual vacuum is created. The law tolerates no vacuum. Nor does any vacuum arise factually since, upon the sudden demise of the incumbent, someone else is immediately sworn in as chief minister (whether temporarily or otherwise). The new chief ministerial appointee (even if interim) undoubtedly requires an oath. But it does not follow that the other members of the Council also require a fresh oath.
Although the executive head of a state is called a chief minister (corresponding to the prime minister at the Centre), he/she is constitutionally only the first among equals. He/she is like any other minister but designated as the ‘Chief’ of the Council. Despite the enormous de facto power he wields, it cannot be said that it is his physical existence that imparts constitutional legitimacy to the Council.
Articles 163 and 164 of the Constitution (and similar articles pertaining to the government at the Centre) provide that the Council of Ministers in a state shall be headed by the chief minister; the Council shall aid and advise the Governor. The chief minister is appointed by the Governor; the ministers are appointed by the Governor on the advice of the chief minister and a minister holds office during the pleasure of the Governor.
It is thus clear that as long as ministers have been validly appointed, to begin with, they shall continue to hold office till such time as the pleasure of the Governor is withdrawn. Death of an incumbent chief minister who recommended their initial appointment cannot be regarded as the withdrawal of the Governor’s pleasure, collectively, for the entire pre-existing Council. Withdrawal of the Governor’s pleasure (even assuming the Governor to mean the chief minister) must necessarily be a conscious, deliberate and voluntary act. An accident of fate (e.g. death), being involuntary, would not qualify as ‘withdrawal of pleasure.’ A new chief minister (even if interim) is sworn in and that new chief minister cannot be said to have withdrawn the pre-existing advice of the deceased chief minister given earlier to the Governor.
Finally, such an interpretation would unnecessarily raise serious questions of practical administrative exigency. For example, if the taking of a second oath by the existing Council is a constitutional imperative, there will be serious doubts raised about the validity and legitimacy of acts performed and decisions taken by the members of the existing Council in the inevitable interregnum between the sudden demise of the chief minister and the taking of the second oath. Significant and urgent decisions taken during the interregnum would then come under a cloud.
Tragic accidents sometimes definitively raise important questions pertaining to constitutional law. The death in office of three incumbent Indian prime ministers (Jawaharlal Nehru, Lal Bahadur Shastri and Indira Gandhi) and three chief ministers (Dayanand Bandodkar, M.G. Ramachandran and Beant Singh) have not been able to provide an answer to this question. In many cases, not only was a new prime minister or chief minister sworn in, but also a new Cabinet.
In some cases, only a new chief executive was sworn in but the issue of a second oath was not raised. In Gulzarilal Nanda’s case, when he acted as Prime Minister in 1964 and 1966, the previous Cabinet continued without any fresh oath but the constitutional issue was not raised. Following Beant Singh’s death, the old Cabinet continued without any fresh oath.
The actual course of action adopted in Andhra Pradesh should not, therefore, be allowed to set a legal precedent for the future. Constitutional law is sometimes created by fact and it is, therefore, necessary to evaluate it very carefully and cautiously lest it generate more confusion and less clarity for the future.
Abhishek Singhvi is an MP, National Spokesperson of the Congress party and Senior Advocate. The views expressed by the author are personal.