The Concept of Collective Ministerial Responsibility in India- Theory and Practice

INTRODUCTION

Collective Ministerial Responsibility in the sole crux of Parliamentary democracy.  The principle of collective responsibility represents ministerial accountability to the legislature. In India, the doctrine of collective responsibility of the Union Executive to the House of the People and of the State Executive to the Legislative Assembly is specifically enshrined in the Constitution. Article 75(3) lays down that the Council of Ministers shall be collectively responsible to the Lok Sabha. It means that the Government must maintain a majority in the Lok Sabha as a condition of its survival. The object of Collective responsibility is to make the whole body of persons holding ministerial office collectively, or, if one may so put it, “vicariously responsible for such acts of the others as are referable to their collective violation so that, even if an individual may not be personally responsible for it, yet, he will be deemed to share the responsibility with those who may have actually committed some wrong.”[1]

Lord Salisbury explained the principle of collective responsibility as: “For all that passes  in the Cabinet, each member of it who does not resign is absolutely irretrievably responsible, and has no right afterwards to say that he agreed in one sense to a compromise while in another he was persuaded by his colleagues. ”[2]

The collective responsibility under Article 75 of the Constitution of India has two meanings: (I) All members of a Government are unanimous in support of its policies, (II) The ministers, who had an opportunity to speak for or against the policies in the cabinet are thereby personally and morally responsible for its success and failure.[3] Collective cabinet responsibility refers to the accepted conduct of Government Ministers as part of the cabinet. Under this doctrine, ministers are bound to support publicly the decisions made by the Cabinet as a whole and will show no disagreement with these decisions outside the cabinet room. The doctrine has evolved as a means of maintaining the appearance of cabinet unity and party discipline and showing that the government is firmly behind the policies it promotes and seeks to pass through the parliament. The doctrine of Collective Cabinet Responsibility evolved as a means of giving a public appearance of cabinet unity and genuine collective decision making.

The principle of collective responsibility secures the unity of the Cabinet and the Council of Ministers. Prime Minister Nehru took occasion to expound the principle as follows in the context of State Governments,

“A Government after the parliamentary model, is one united whole. It has joint responsibility. Each member of the government has to support the others so long as he remains in the government. The Minister has to support his other Ministers and the other Ministers have to support each other and the Chief Minister. It is quite absurd for any Minister to oppose or give even the impression of opposing a colleague of his. Opinions may be freely expressed within the Cabinet. Outside, the government should have only one opinion. There is no question of a member of government being neutral in a controversial issue in which the government is concerned except in the rare cases which we may consider as matters of conscience, where freedom is given.”[4]

The decisions of the Cabinet are regarded as the decisions of the whole Council of Ministers and binding on all Ministers. A Minister cannot disown responsibility for any Cabinet decision so long as he remains a Minister. He cannot both remain a Minister and criticize or oppose a Cabinet decision or even adopt an attitude of neutrality, or oppose a colleague in public. A Minister who disagrees with a Cabinet decision on a policy matter, and is not prepared to support and defend it, should no longer remain in the Council of Ministers and should better resign.

There have been a number of resignations in the past because of the differences with the Cabinet. Dr. Mathai resigned as a Finance Minister because he disagreed with the Cabinet on the question of scope and powers of the Planning Commission which was proposed to be set up then. C. D. Deshmukh resigned because he differed from the Cabinet on the issue of re-organization of States, especially on the question of Bombay. On September 5, 1967, Foreign Minister Chagla resigned because of his differences with the Government’s language policy, especially the place of English. Several other Ministers have resigned from the Central Council of Ministers owing to their differences with the Cabinet.[5] There is, however, a convention, that a resigning Minister may, if he so wishes may state the nature of his disagreement with the Cabinet in his letter of resignation and make a resignation speech in Parliament.

The principle of collective responsibility is both salutary and necessary. In S.P. Anand, Indore v. H. D. Deve Gowda[6], it was held that even though a Prime Minister is not a member of either House of Parliament, once he is appointed he has also his Ministers become answerable to the House and the principle of collective responsibility governs the democratic process. On no other condition can a Council of Ministers work as a team and carry on the government of the country. It is the Prime Minister who enforces collective responsibility amongst the Ministers through his ultimate power to dismiss a Minister. The Supreme Court has ruled that the principle of collective responsibility is in full operation so long as the Lok Sabha is not dissolved. “But when it is dissolved the Council of Ministers cannot naturally enjoy the confidence of the House of People.”[7]

The Gujarat High Court has described the principle of collective responsibility as follows: “Collective responsibility means all Ministers share collective responsibility even for decisions in which they have taken no part whatsoever or in which they might have dissented at the meeting of the Council of Ministers. Collective Responsibility means the members of Council of Ministers express a common opinion. It means unanimity and confidentiality.”[8]

According to the Hon’ble Supreme Court, collective responsibility means that “all members of a government are unanimous in support of its policies and would exhibit that unanimity on public occasions although while formulating the policies, they might have expressed a different view in the meeting of the Cabinet.”[9]

It is to give effect to the principle of collective responsibility that the deliberations of the Cabinet are kept secret and confidential because preservation of a united front will become impossible if disclosures are permitted of the differences of opinion which emerged at a Cabinet meeting amongst its members.[10]

The consequences of this secrecy are far reaching. “Relying on this protection, Cabinet members are free to voice their opinions without reserve on all subjects which come up for discussion; the motives which have influenced the Cabinet in coming to its decision will not be disclosed; the dissentients can support the corporate policy without being themselves singled out for special attack or having the motives impugned.”[11]

A Cabinet Minister may lose his office if he reveals the details of a Cabinet discussion to the press. The secrecy may at times be released partially when a Minister resigns his office. He is entitled to make a statement in Parliament so that he may reveal the reasons for his resignation.

How far can an Ex-Cabinet Minister be legally obligated not to reveal Cabinet discussion? This question has been answered in Britain in Attorney-General v. Jonathan Cape Ltd.[12] Crossman was a Cabinet Minister for nearly six years (1964-1970). He maintained a detailed dairy about the Cabinet proceedings. After he ceased to be a Minister, he began to collate his diaries with a view to their eventual publication. Crossman died in 1974. After his death, his diaries were due for publication. The Attorney General brought an action for injunction against Crossman’s executors for restraining them to publish the diaries. His contention was that the Cabinet proceedings and Cabinet papers being secret, these could not be publicly disclosed. The confidentiality of Cabinet papers and proceedings emanate from “the convention of joint Cabinet responsibility” “whereby any policy decision reached by the Cabinet has to be supported thereafter by all members of the Cabinet whether they approve of it or not, unless they feel obliged to resign.”

The Court laid down the proposition that “when a Cabinet Minister receives information in confidence the improper publication of such information can be restrained by the Court.” The Court pointed out that the “Cabinet is at the very centre of national affairs and must be in possession at all times of information which is secret or confidential.” To identify the Ministers who voted one way or another in a Cabinet meeting would undermine the doctrine of joint responsibility.

The Court, therefore, ruled that “the expression of individual opinions by Cabinet Ministers in the course of Cabinet discussion are matters of confidence, the publication of which can be restrained by the court when this is clearly necessary in the public interest.” The Court also agreed that “the maintenance of the doctrine of joint responsibility within the Cabinet is in the public interest, and the application of that doctrine might be prejudiced by premature disclosure of the views of individual Ministers”. But in the instant case, the Court refused to grant injunction because what was sought to be revealed was ten years old, as the Cabinet discussions held during the period 1964-1966 were sought to be published in 1975, and there would be no damage to public interest by the said publication.

As earlier noted, coalition governments have now become the order of the day in India, especially at the Centre. A number of disparate political parties come together to form the government as no single party has majority in the House. Experience has shown that inherently such governments are unstable as any constitutional party forming such a coalition government can withdraw its support anytime, thus, reducing the government to a minority. Another casualty of such an arrangement is the principle of collective responsibility, the reason being that the various parties lack a common programme and a common approach to national issues and so they speak in different voices. Further, the various parties constituting the government are more interested in pursuing their own party programme rather than a common national agenda. The coalition governments adversely affect the homogeneity and solidarity of the Cabinet.

To begin with, in Britain, the concept of collective responsibility was based on conventions. But, now, after Jonathan Cape, it cannot be regarded as a purely conventional concept because the court of Appeal has specifically recognized it. In India, the concept of collective responsibility has been specifically incorporated in a constitutional provision [Art. 75(3)], and it has been judicially recognized in several cases mentioned above.

Ministers must not vote against government policy

Without this, it could be argued that a government has lost the right to exist, and is therefore the most fundamental part of the whole doctrine of Collective Cabinet Responsibility. When a Minister votes for his or her government, he/she is giving a public expression of support even though, in private, he or she may be less enthusiastic for the measure. Even as abstention would be seen as breaking the convention – it is not enough simply not to vote against, but a positive display of support is required.

Ministers must not speak against Government Policy

Voting against or abstaining are fairly clear breaches of the convention, yet speaking against the government is less clear-cut. In the age of spin, press briefing, and leaks, a Minister may always find a way to communicate his or her dissatisfaction with a particular Government position.

All decisions are decisions of the whole Government

A Minister should not brief or leak against a cabinet colleague in order to attack the position of an individual or group within the Cabinet or to place distance between themselves and the policy.

A former Minister must not reveal Cabinet secrets

To protect the unanimity and confidentiality of the Cabinet proceedings, a Minister must not reveal the secrets in any form.

The Convention of Collective Responsibility

Geoffrey Marshall has identified three strands within the convention of collective responsibility[13], which are as follows:

1. The Confidence Principle: A government can only remain in office for so long as it retains the confidence of the House of Commons, a confidence which can be assumed unless and until proven otherwise by a confidence vote.
2. The Unanimity Principle: Perhaps the most important practical aspect is that all members of the government speak and vote together in Parliament, same in situations where the Prime Minister and Cabinet themselves make an exception such as a free vote or an ‘agreement to differ’.
3. The Confidentiality Principle: This recognizes that unanimity, as a universally applicable situation, is a constitutional fiction, but one which must be maintained, and is said to allow frank ministerial discussion within Cabinet and Government.

According to Dr. B. R. Ambedkar, Collective Responsibility is enforced by the enforcement of two principles. One principle is that, No person shall be nominated to the cabinet except on the advice of the Prime Minister. Secondly, no person shall be retained as a Member of the Cabinet if the Prime Minister says that he should be dismissed. It is only when the Members of the Cabinet, both in the matter of their dismissal are placed under the Prime Minister, that it would be possible to realize our ideal of collective responsibility.

The US Constitution makes the President responsible for ensuring that the laws of the country are faithfully executed. He alone is vested with the power to appoint and remove executive officers and, thus, can effectively control the Government Departments. The President has under him Secretaries of State in charge of different executive departments who are appointed by him and who are his personal advisers. He is not bound to accept the advice tendered by them. He enjoys ultimate power of decision and therefore, has complete political responsibility for all the executive actions. The President dominates the Cabinet completely as the Secretaries of the State hold their offices entirely at his pleasure and are accountable to him. They are merely the instruments through whom the President’s policy is carried out. As has been aptly said, “The cabinet is not a device for sharing responsibility among a group; it is necessary result of the President’s inability to supervise all affairs directly.”[14]

The Indian President, on the other hand, acts generally on the advice of the Ministers. The US President is free to dismiss any of his Secretaries as and when he likes. The President of India has a formal power to that effect but exercises it on the advice of the Prime Minister, or when the Cabinet has forfeited the confidence of the Lok Sabha. The Secretaries of State in the USA, on the other hand, are neither responsible to Congress, nor are its members, nor do they function on the basis of Collective Responsibility. This is very different from the underlying principles on which the Executive functions in India. The truth of the matter is that America hardly has a cabinet corresponding to the classic idea of a cabinet in the Parliamentary form of Government. “Because of his unfettered power of removal over them and the fact that his tenure of office is not in any way dependent upon the effect which his dismissal of the cabinet members may have upon the Congress, the President is able to dominate his Cabinet to an extent which would be almost impossible in the case of a Prime Minister.”[15]

Ministers are responsible to the Lok Sabha not as individuals alone, but collectively also. Members of the Cabinet swim and sink together. When a decision has been taken by the Cabinet, every Minister has to stand by it without hesitation. The essence of Collective Responsibility is that “a measure accepted by the Cabinet is regarded as the joint responsibility of every one, whether or not he was present at the meeting which reached the conclusion or whether he opposed it when discussed” A No-Confidence Motion expresses want of confidence in Government. It is generally moved by Leader of Opposition. On conclusion of the debate, the Speaker puts the Motion to Vote. If the Motion is passed, the Ministry has to resign.

Individual Responsibility: Though the Ministers are collectively responsible to the Lok Sabha, they shall be individually responsible to the Head of State. The Ministers hold office “during the pleasure of the President.” It implies that the Ministers shall be liable to be dismissed by the President for their undesirable activities. However, in these matters the President acts on the advice of the Prime Minister. Usually, because of something that the Minister has done, the Prime Minister asks him to resign, which he readily does. Besides, every Minister is obliged to answer questions pertaining to his department.

(Control of Parliament Over the Executive, i.e.. the Council of Ministers)

The Council of Ministers is responsible to the Lok Sabha. There are several methods by which Parliament ensures Ministerial Responsibility. They are:

a)      To put to Ministers questions which should be properly answered. No Minister can afford to take a question lightly, because sometimes even a simple enquiry may lead to an unexpected volume of criticism. The questions give MPs, and through them the general public, some measure of control over the Executive.

b)      Moving an Adjournment Motion for discussing an important matter that should have urgent consideration.

c)      Moving Cut Motions when the financial matters are under consideration.

d)     The debates take place on a resolution moved in the House, but no debate is allowed during Question Hour or Half-an-Hour discussion.

e)      Moving Censure Motion against an individual Minister or a group of Ministers for their failures.

f)       Moving a No-Confidence Motion. Such a Motion is moved by a member or Leader of Opposition. If the Motion is carried, it implies loss of confidence and the Government has to resign.

The Prime Minister is the symbol and the leader of the Council of Ministers. The first instance or incidence of collective responsibility is that no Minister can call any policy decision as his/her own and if he/she does so, he/she can be pulled up by the Prime Minister since the primary function of the Prime Minister is to implement the decisions of the Council of Ministers and to oversee the work of the departments under his Ministry. Normally a Minister has no direct link with the President or the Governor except for the documents regarding his/her signature coming from a Ministry on which executive action has to be taken which must be authenticated by the Minister and the Secretary of the Ministry. Where the President or the Governor feels that a matter presented to him/her under the signature of a Minister should also have been discussed by the Council of Ministers, he/she can refer it back accordingly. The Council of Ministers belongs to the President or the Governor whereas the Ministers belong to the Prime Minister or the Chief Minister.[16]

The second incidence of the principle of collective responsibility is that there should be complete harmony in the Council of Ministers. Normally the majority party or the coalition provides the general guidelines to its legislative party group and the loyalty to the party or coalition is the first instance and to the Prime Minister in the second instance provides the foundation for the harmony in the cabinet. In coalition government, there is of necessity a common minimum programme which becomes the working basis for harmony.

(i)                In early 1950s on the issues relating to States re-organization, the Congress suffered resignation from the Union Cabinet of C.D. Deshmukh.

(ii)               On the question of setting up of Planning Commission the Finance Minister John Mathai left the Cabinet.

(iii)             When the Congress decided on Nationalization process and development of public sector by its 1958 Nagpur resolution, T.T. Krishnamchari and K.M. Munshi along with a sizeable group of Congressmen left the Cabinet and formed independent Swatantra Party with rightist ideology.

(iv)       An interesting case arose when the President accepted the resignation of Law Minister Ram Jethmalani on the recommendation of Prime Minister Atal Bihari Vajpayee in July 2000. The Supreme Court was examining the Sri Krishna Report which had probed the Mumbai communal riots of 1992-93 and had indicted Shiv Sena Chief Bal Thackeray for his role in the riots. The Chief Justice had castigated the Minister for making statements which were contradictory to the affidavit filed by the Central Government. Shri Jethmalani had reacted to the comments and had stated that ‘he knew the law as well as anyone else.’

Prime Minister made the following statement in Parliament in the Ram Jethmalani’s case which is significant from the point of view of Collective Ministerial Responsibility: “Certain statements have been made by Shri Ram Jethmalani, former Union Minister for Law, Justice and Company with regard to the Chief Justice of India and the Attorney General of India. I have gone through those statements. My government does not share the views of Sri Jethmalani with regard to the subject matter on which he has spoken, we completely disagree with his perception of facts.

The government believes in promoting a harmonious relationship between different wings of the State. Without going into the question of correctness of any possible view involved on the issue on which Shri Jethmalani corresponded with Hon’ble Chief Justice of India, I was of the opinion that even the differences of opinion between the Chief Justice and the Law Minister should not create any imbalance in the harmonious relationship. Thus in order to ensure that his harmony is not only maintained but strengthened, I exercised my prerogative and asked Shri Jethmalani to resign. I have gone into the text of his statements issued yesterday, i.e., 27^th July, against the Chief Justice of India and the Attorney General of India. I reiterate that my government completely disagrees with his perception.”[17]

Usually when members of the Cabinet in large numbers faith in the leadership of the Prime Minister, it is seen that the party itself suffers a breakdown.

(i)                 In 1969, in Congress Ministry at the Union under Indira Gandhi there was an inside conflict between ‘old guards’ of the party and the ‘Young Turks’ in the party. The Congress party was dominated by the former while in the House of People the Congress legislative party had young Turks in majority. In the turmoil which followed Prime Minister Indira Gandhi and young Turks quit the Indian National  Congress and formed Congress(I) but continued to have their Council of Ministers against the Congress (O) odds.

(ii)               In 1979, in the Janata Ministry under Prime Minister Morarji Desai came to an end when dissension developed and Charan Singh group of MPs separated and formed a new party. With promised Congress(I) outside support Charan Singh formed his Council of Ministers but his government fell because Congress(I) withdrew the support before the House of People met for the confidence vote.

(iii)             Similarly, in 1990 National Front Prime Minister V. P. Singh suffered a defeat in House of People when Chandrashekhar led big group of Ministers and MPs left Janata Dal. Subsequently, Chandrashekhar with outside support of Congress(I) for some time functioned as Prime Minister himself.

These illustrative examples establish that the party obtaining majority in the House has to be very much practical and judicious in the choice of person who has to form the government as Prime Minister or Chief Minister. If and when the Prime Minister or Chief Minister fails to command respect and loyalty and the party does not or fails to change the leader for the Council of Ministers in time the party itself suffers a break or serious upheaval.

“Collective Responsibility likewise has several meanings but only two are of importance. In the first sense, it refers to the fact that all members of a Government are expected to be unanimous in support of its policies on all public occasions. This is because divergences along leading members of a Government afford such wonderful openings to its opponents and are such evidence of disharmony that they cannot be tolerated. The other sense is that Ministers who have, in theory, an opportunity to speak for or against a policy in the Cabinet, are thereby personally and morally involved in its failure or success.”[18] The Cabinet works as a team. There are no specific rules in the English Constitution relating to joint or collective responsibility. In India, the Constitution has specifically provided that the Council of Ministers shall be collectively responsible to the House of the People. It means that if the House of the People passes a vote of no-confidence in the Council, the Council has to resign. If it fails to resign the President will dismiss it. There is another aspect of joint responsibility. The Cabinet must work as a team and hence a Minister who does not agree with the Prime Minister must resign. Every Minister has to support the decision of the Cabinet in public, even though he might have differed from others in the Cabinet meeting; otherwise the Minister must resign.

Since 1950 many Ministers in the Central Cabinet resigned. The resignations of Shri Shanmugham Chetty, 1948, Shri Lal Bahadur Shastri, 1956, Shri T.T. Krishnamachari, 1958, Shri V.K. Krishna Menon, 1962 and Shri G.L. Nanda, 1966 were the results of the individual responsibility of the Minister for the working of the department. Shri Shyama Prasad Mukherjee, Shri K.C. Neogy, Dr. John Matthai and Shri Mohanlal Saxena resigned because of policy differences with the Prime Minister. The same was the reason for the resignations of Dr. Ambedkar, 1951, Shri V.V. Giri, 1952, Shri C. D. Deshmukh, 1956, Shri A.P. Jain, 1958, Shri Mahavir Tyagi, 1966, Shri M.C. Chagla, 1967, and Shri V.P. Singh, 1987. There were three cases of resignation of Ministers for allegations of corruption. They were the resignations of Shri K.D. Malaviya, 1963, Dr. M. Chenna Reddy, 1968 and T.T. Krishnamachari, 1958.[19] Shri Morarji Desai who was the Deputy Prime Minister and Finance Minister in the Cabinet headed by Shrimati Gandhi, resigned in July 1969 in protest against the action of the Prime Minister in taking away the Finance portfolio from him without giving him an idea that she was adopting that measure.

On March 2001, George Fernandes resigned as Minister of Defence in the Cabinet of Atal Behari Vajpayee when video tapes secretly recorded by Tehelka showed money changing hands for an alleged defence contract. While the tapes were being inquired into, George Fernandes was reinducted in the Cabinet on October 12, 2001 amidst controversy. The opposition parties boycotted him in Parliament for the duration of the Parliament (till February 2004).

Natwar Singh, External Affairs Minister in the Manmohan Singh Cabinet was forced to resign in September 2006 for his role in the Iraqui Oil-for-food Scam.

There is one more aspect of this Convention. If the Prime Minister resigns or dies, it means the dissolution of the entire Cabinet. On the death of Shri Nehru, the then Prime Minister of India, on May 27, 1964, President Radhakrishnan swore in. Shri G.L. Nanda, the senior-most Minister in the Cabinet as the interim Prime Minister. Shri Nanda resigned on the election of Shri Shastri as the leader of the Congress Party on June 2, 1964. The same procedure was followed on the death on Shri Shastri on January 11, 1966. On the assassination of Prime Minister Indira Gandhi on January 31, 1984, the Parliamentary Board of the Congress Party to which Mrs. Gandhi belonged and which had majority in Lok Sabha elected Shri Rajiv Gandhi as the leader of the Party in Lok Sabha. As a result of this Rajiv Gandhi was sworn in as the Prime Minister of India that very evening. There was no interim Prime Minister on that occasion. It is not necessary for the Prime Minister who resigns to have the resignations of all other Ministers with him. Even if some Ministers are unwilling to resign, they cease to be Ministers on the Prime Minister tendering his resignation. This is an effective way of getting rid of inconvenient colleagues who might refuse to oblige the Prime Minister by their resignation. Similarly, if a vote of no-confidence is passed against an individual Minister, it is a vote of no-confidence in the Cabinet and the Cabinet will have to resign. For, a Minister cannot have his own policy as distinct from the policy of the Cabinet. Prime Minister Nehru expressed his views as follows: “A Government after the Parliamentary model is one united whole. It has joint responsibility. Each member of the Government has to support the other so long as he remains in the Government. The Chief Minister has to support his other Ministers and other Ministers have to support each other and the Chief Minister. It is quite absurd for any Minister to oppose or give even the impression of opposing a colleague of his. Opinions may be freely expressed within the Cabinet. Outside, the Government should have only one opinion. There is no question of a member of the Government being neutral on a controversial issue in which the Government is concerned, except in a rare case which we may consider as matters of conscience, where freedom is given.”[20]

Article 75(3) provides for the Council of Ministers being Collectively Responsible to Lok Sabha. In the UK, the concept is that of Individual and Collective Responsibility of Ministers. Our Constitution, however, provides only for Collective Responsibility which means that there can be no no-confidence in a single Minister. The entire Council of Ministers is jointly responsible to Lok Sabha for all acts of Government. Therefore, it stands or falls together. If it loses the confidence of the House, the entire Council of Ministers must resign. Also, Collective Responsibility would mean that the Ministers must not speak in public in different voices.

The principle of Collective Responsibility may be regarded as fundamental to the working of the Parliamentary Government, as it is in the solidarity of the Cabinet that its main strength lies. The principle of Collective Responsibility means that the Council of Ministers is responsible as a body for the general conduct of the affairs of the government. All ministers stand or fall together in Parliament, and the government is carried on as a unity. The rule ensures that the Council of Ministers works as a team, as a unit, and as a body commands the confidence of the House and that the Cabinet’s decisions are the joint decisions of all the Ministers.[21] There has been for some time and is at present a multitude of political parties in India. Without any particular party capable of forming a government on its own, there have been coalition governments at the centre and in many states for about the last 40 years. The country has and is being run by a number of parties which not only do not represent the majority in the country but may not even represent the majority in their own state. With different political agendas there is often no consensus on major issues of policy. Threats of withdrawal of support unless a coalition partner’s particular political agenda is met, has resulted either in a stalemate or in an individual minister in charge of the ministry taking decisions without consulting the Council or the Cabinet.

 About the Author

ROMIT RAJA SRIVASTAVA
Symbiosis Law School, Noida
romitrajasrivastava@msn.com

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