We will discuss following issues in this write-up
What are the Minister’s general power to review the working of the investigating agency and to give broad policy directions regarding the functioning of the agencies ? What is oath and what are constitutional provisions? Consequences of breach thereof? If Minister exceeds power, does it amount to breach of oath? What recourse open to the Chief Minister /State Government or Governor ? Can they approach Court under Article 226 or Article 32 of the Constitution of India?
Let us first learn provisions of the Constitution of India:
For State the Constitution provides 159. Oath or affirmation by the Governor.—Every Governor and every person discharging the functions of the Governor shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of the High Court exercising jurisdiction in relation to the State, or, in his absence, the senior-most Judge of that Court available, an oath or affirmation in the following form, that is to say— ―I, A. B., do swear in the name of God that I will faithfully execute the solemnly affirm office of Governor (or discharge the functions of the Governor) of ………(name of the State)and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of ..……(name of the State).‖
Under Article 164 every minister has to take oath before entering into his office it says: 164. (1) Other provisions as to Ministers.—(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….
(3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule…
Article 193 provides for penalty
- Penalty for sitting and voting before making oath or affirmation under article 188 or when not qualified or when disqualified.—If a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State before he has complied with the requirements of article 188, or when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the State, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State.
Form of oath of secrecy for a Minister for a State:— ―I, A.B., do swear in the name of God that I will not directly or indirectly communicate or reveal solemnly affirm to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the State of ………………..except as may be required for the due discharge of my duties as such Minister.‖
Now the power comes with duties
- Duties of Chief Minister as respects the furnishing of information to Governor, etc.—It shall be the duty of the Chief Minister of each State— (a) to communicate to the Governor of the State all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation; (b) to furnish such information relating to the administration of the affairs of the State and proposals for legislation as the Governor may call for; and (c) if the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.
COMMENTARY : DRUGS:
As there is an increase in the usage of drugs one of the Rajya Sabha Member from Maharashtra Hon’ble Mr.Sanjay Raut asked details and questions on the action being taken by the Central Government to curb the menace of drugs. Following is the link to the said questionnaire and reply. https://mha.gov.in/MHA1/Par2017/pdfs/par2021-pdfs/rs-03022021/21.pdf
The concern is really alarming because during the state of Punjab in 2016 a film was released namely Udata Punjab on the issue of drugs and crime. The drug is a serious menace in Punjab and the election was won on basis of the eradication of drug and drug mafias in the State of Punjab by the opposition party who is also in the State of Maharashtra. The said film Udta Punjab (transl. Flying Punjab) is a 2016 Indian crime film. On 4 June 2016, the Central Board of Film Certification, India sought a stay on the film’s release citing that the themes dealt with in the film were too vulgar for the general audience. As a result, the producers were directed to make a total of 89 cuts in the film. However, on 13 June 2016, the Bombay High Court struck down the stay and gave permission for the film’s national release, albeit with a single cut in the screenplay. The film was released worldwide on 17 June 2016. Made on a budget of ₹340 million (US$4.5 million), Udta Punjab was a domestic commercial success and earned approximately ₹960 million (US$13 million) worldwide. It was critically acclaimed, and at the 62nd Filmfare Awards, the film won four awards. (Source Wikipedia)
Following is an extract of chart submitted by the Government in reply to the question raised by Rajya Sabha Member Hon’ble Mr.Sanjay Raut and one could see the huge amount of seizure in the State of Maharashtra
As we all know the drug is a danger to the society and future of the country is ruined due to drugs. This is a situation where a serious problem is knocking at the country’s doors.
CAGED PARROT- CBI – INTERFERENCE BY LAW MINISTER
Madras High Court observed in Ramanathapuram District Pathikkapattor Sangam v. State of Tamil Nadu that, “When such is the trust and faith of the people, very sadly CBI is dragging its feet, whenever there is a demand for CBI enquiry on the ground that resources and man power available with CBI are very restricted and therefore, it cannot conduct investigations. This is the usual stereotype version/defence of the CBI before the Courts” It was observed in para 14 that, “14. However, when serious cases are coming up before Courts, there is always a glamour to seek for transferring the cases to the Central Bureau of Investigation, as the Central Bureau of Investigation has got a reputation as a premier investigation agency. It is known for investigating economic offences, corruption cases and sensitive cases. However, many cases which are investigated by the Central Bureau of Investigation, even serious cases, have ended in acquittal. It badly reflects upon the investigation of CBI. Hence, time has come to look into problems faced by CBI. Investigation of CBI needs to be improved by adding experts and modern gadgets.
- It is not known as to whether the Central Bureau of Investigation is doing recruitment of their own Officers independently or it is depending upon the Officers deputed from other sources”
For States, Oaths are administered by Governor and for Centre Oath is administered by the President of India under Constitution.
In Vineet Narain & Others vs Union of India & Another on 18 December 1997 Supreme Court held that It is sufficient to say that The Minister’s general power to review the working of the agency and to give broad policy directions regarding the functioning of the agencies and to appraise the quality of the work of the Head of the agency and other officers to the executive head is in no way to be diluted. Similarly, the Minister’s power to call for information generally regarding the cases being handled by the agencies is not to be taken away. However, all the powers of the Minister are subject to the condition that none of them would extend to permit the Minister to interfere with the course of investigation and prosecution in any individual case and in that respect, the concerned officers are to be governed entirely by the mandate of law and the statutory duty cast upon them.
COAL-SCAM: On 26 April the CBI director Ranjit Sinha submitted an affidavit in the Supreme Court stating that the coal scam status report prepared by the investigating agency was shared with the law minister Ashwani Kumar “as desired by him”, joint secretary-level officers from the Prime Minister’s Office (PMO) and the coal ministry before presenting it to the court on 8 March. It contradicts the claim made by CBI counsel in SC that the coal scam report was not shared with any member of the government. On 29 April, CBI stated to SC that 20% if its original report was changed by Government. Additional Solicitor-General Harin Raval resigned for having misled the Supreme Court.
Ranjit Sinha said SC that CBI is part of government and hence not autonomous. The three-judge Bench of Justices R.M. Lodha, Madan B. Lokur and Kurian Joseph directed the CBI to file an affidavit by 6 May regarding the changes that were made in the status report, at whose instance the changes were made, and the effect of these changes on the entire investigation. Counsel Prashant Bhushan said there were efforts to shield PM. He said “the Central Vigilance Commission can at least be asked to direct the CBI to show the final report. If the CVC feels there are a few things left out and if there are things not done then it can ask the CBI to change the Investigating officer. The reason why the CVC can interfere is because of this administrative control. The CBI Director who has statutory status can be pressurized by promising post-retirement jobs etc. Thus government manages to control the CBI.” Adv Prashant Bhushan said “companies are trying to operationalize and then they can say so much investment is being done. Every delay will lend them the contention of equity.”
He requested court to appoint a retired judge and police officer of impeccable integrity to overlook the investigation.SC said that it will liberate CBI from political interference to make CBI credible, impartial and independent. On 24 September 2014 Supreme Court quashed allocation of 214 out of 218 coal blocks which were allotted to various companies since 1993 and in which it was claimed that around Rs 2 lakh crores were invested. ( Courtesy Wikipedia https://en.wikipedia.org/wiki/Indian_coal_allocation_scam#Supreme_court_hearing )
JUDICIUM : INVESTIGATION POWER
In Manohar Lal Sharma vs The Principal Secretary & Others on 17 December 2013 Supreme Court observed that:
- In the criminal justice system, the investigation of an offence is the domain of the police. The power to investigate into the cognizable offences by the police officer is ordinarily not impinged by any fetters. However, such power has to be exercised consistent with the statutory provisions and for legitimate purpose. The Courts ordinarily do not interfere in the matters of investigation by police, particularly, when the facts and circumstances do not indicate that the investigating officer is not functioning bona fide. In very exceptional cases, however, where the Court finds that the police officer has exercised his investigatory powers in breach of the statutory provision putting the personal liberty and/or the property of the citizen in jeopardy by illegal and improper use of the power or there is abuse of the investigatory power and process by the police officer or the investigation by the police is found to be not bona fide or the investigation is tainted with animosity, the Court may intervene to protect the personal and/or property rights of the citizens.
- Lord Denning has described the role of the police thus:
“In safeguarding our freedoms, the police play vital role. Society for its defence needs a well-led, well-trained and well- disciplined force or police whom it can trust, and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice. The police, of course, must act properly. They must obey the rules of right conduct. They must not extort confessions by threats or promises. They must not search a man’s house without authority. They must not use more force than the occasion warrants……….”
Breach of oath by Minister and remedy available to Chief Minister:
Oath of office is not an empty formality with no constitutional significance. In the debates in the Constituent Assembly on Article 56, Dr. Ambedkar is reported to have said that the phrase “violation of the Constitution” is a large one and may well include treason, bribery or other high crimes and misdemeanors, because treason is certainly violation of the Constitution and bribery will be violation of the Constitution because it will be violation of the oath by the President. In the Judges’ transfer case, S.P. Gupta v. President of India, AIR 1982 SC 149 Pathak J., observed thus : “When a Judge permits his judgments in a case to be influenced by the irrelevant consideration of caste and creed, of relationship or friendship, of hostility or enmity, he commits a breach of his oath. It is a case where justice is not done and is denied. It is a case of misbehaviour to which the provisions of Article 218 read with Clauses (4) and (5) of Article 124 are attracted.”
This statement of the law was approved in the leading case R. v. Speycr (1916) 1 KB 595 and it has been cited in all the important cases relating to quo warranto jurisdiction. A writ of quo warranto or a writ by way of information in the nature of quo warranto cannot issue in these cases when a post is held ‘at pleasure’. This is the normal rule. Even in those cases, however, the non-fulfilment of the conditions prescribed for assumption of office or the absence of the required qualification to hold that office affecting the title to that office will give rise to the issuance of this writ. Once the office is held under a valid title, and the continuance depends on the pleasure doctrine, the writ of quo warranto does not run; and no such writ, which can be defeated immediately by the mere exercise of an executive will, will therefore issue.
K.C. Chandy vs R. Balakrishna Pillai on 19 August, 1985
In para 14, “We hold that in the present case, the question as to whether there was a breach of oaths of office and of secrecy, is a matter to be decided under Article 164(1) for the purpose of the ‘pleasure doctrine’ applicable to the tenure in office of a Minister. The Minister holds office only ‘at the disposal’ of the Chief Minister and/or Governor and his office is held ‘durante bene placito’ of the Chief Minister and/or the Governor.”
The intention of the founding fathers of the Constitution was to leave such matters to the good sense of the Chief Minister and to the good sense of the Legislature with the “general public holding a watching brief upon them is what we can gather from the speech made by Hon’ble Dr. B. R. Ambedkar in the Constituent Assembly when he said : (Constituent Assembly Debates Vol.7 –Pages 1159 to 1160) : “I want to tell my friend Prof. K. T. Shah that his amendment would be absolutely fatal to the other principle which we want to enact, namely collective responsibility. All members of the House are very keen that the Cabinet should work on the basis of collective responsibility, and all agree that is a very sound principle. But I do not know how many members of the house realise what exactly is the machinery by which collective responsibility is enforced. Obviously, there cannot be a Statutory remedy. Supposing a Minister differed from other Members of the Cabinet and gave expression to his views of the Cabinet, it would be hardly possible for the law to come in and to prosecute him for having committed a breach of what might be called collective responsibility. Obviously, there cannot be a legal sanction for collective responsibility. The only sanction through which collective responsibility is enforced is through the Prime Minister. In my judgment 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 shall be dismissed. It is only when Members of the Cabinet both in the matter of their appointment as well as in the matter of their dismissal are placed under the Prime Minister, that it would be possible to realise our ideal of collective responsibility. I do not see any other means or any other way of giving effect to that principle.”
The Chief Minister has indeed a very wide discretion to decide whether in a particular case for an alleged violation of oath, any action should be taken at all. The Chief Minister may or may not take notice of the same. Besides, it is a matter of common knowledge that allegations are made by different persons for different reasons with different motives. It is not as if the Chief Minister has to embark on an enquiry every time an allegation is made that there was a violation of oath. How serious is the allegation, who has made it, what is its effect, is it prima facie worthy of enquiry are all matters within the domain of the Chief Minister’s discretion. If it is felt that the allegation should be enquired into, then again, the nature and extent of enquiry are also within the realm of discretion. If an enquiry is made, as to what inferences should be drawn and if the allegations are true what action should be taken are again matters within the discretion of the Chief Minister. In the absence of a prescription by law that the breach of oath shall necessarily entail forfeiture of office, the Governor and/or the Chief Minister may either remove the Minister or may take such other action according to his discretion as the situation may demand.
It was held in Kallara Sukumaran vs Union Of India (Uoi) And Ors. on 30 January, 1987 24. Thus, we find that the Full Bench has clearly laid down the following propositions : (1) That breach of oath of office taken by the Minister is not a disqualification constitutionally listed under Article 191 of the Constitution or specified under any law made by the Parliament; (2) That the oath of office is the prescription of a fundamental code of conduct in the discharge of the duties of a Minister and not a mere moral obligation and binds him throughout his tenure of office. (3) That the office of the Minister is held at the pleasure of the Governor/Chief Minister and therefore termination at their will may be the possible outcome of breach of oath; (4) That the question as to whether there was breach of oath can be considered by the appointing authority under Article 164(1) of the Constitution and not by the High Court under Article 226. It falls within the discretionary domain of the Governor and/or the Chief Minister. (5) That breach of oath requires termination and this power can be exercised by the appointing authority at its discretion and not by the Court under Article 226 of the Constitution. (6) That the court has no jurisdiction under Article 226 to oust a Minister on the ground that he has committed breach of oath.
What are the Minister’s general power to review the working of the agency and to give broad policy directions regarding the functioning of the agencies ?
Hon’ble Supreme Court in 2013 had observed that, “CBI is a caged parrot speaking his master’s voice”, a bench headed by the then CJI RM Lodha had observed then.
If Minister exceeds power, does it amount to breach of oath? What recourse open to the Chief Minister /State Government or Governor ? Can they approach Court under Article 226 or Article 32 of the Constitution of India?
Ans: Its to be decided by Prime Minister /Chief Minister and President/Governor as the case may be whether there is a breach of Oath.
Does it amount to breach of oath? What recourse open to the Chief Minister /State Government or Governor ? Its to be decided by Prime Minister /Chief Minister and President/Governor as the case may be whether there is a breach of Oath.
Can they approach Court under Article 226 or Article 32 of the Constitution of India? Ans: Negative