Unsolved maze

There is an absence of specific provisions in the Indian Constitution regarding the removal of ministers from their portfolios after arrest within 48 hours. This article examines the need for legislative action to address potential discrimination and abuse of power while upholding principles of equality, justice, and the rule of law. Public servants, including ministers, are entrusted with the responsibility of upholding accountability, integrity, and the welfare of the public. While the definition of a public servant does not grant ministers special privileges, they are expected to adhere to the same legal obligations and standards as any other citizen. The administrative and legal frameworks in India govern the removal of public servants, including ministers, from their posts. Conduct Rules and Service Rules provide guidelines for disciplinary action, ensuring the efficiency and integrity of public administration.

The principle of 'innocent until proven guilty' is fundamental in India. However, the removal of public servants after arrest is based on the need to maintain the integrity of public service and preserve public confidence in the administration. This presumption recognizes that the continued presence of a public servant in office may impede investigations or compromise the due process of law. Ministerial accountability is a crucial aspect of democratic governance. Ministers are accountable to the Parliament or state legislatures for their actions and decisions. The Constitution provides mechanisms, such as motions of no-confidence, for their removal if they fail to uphold their responsibilities.

Given the potential for discrimination and abuse of power, it is imperative to introduce a provision in Indian law or the Constitution that mandates the removal of ministers from their portfolios after arrest within 48 hours. Such a provision would ensure that ministers, like any other public servant, face immediate consequences if found guilty of criminal offenses. While the Indian Constitution empowers the President and Governors to appoint ministers, it does not explicitly address their removal in case of arrest within 48 hours. The judiciary has played a significant role in upholding the principles of equality before the law and ensuring that ministers are subject to the same legal processes as any other citizen. However, specific laws addressing this issue are currently lacking.

In the Antulay case, the Supreme Court of India was called upon to address a critical issue. Despite Antulay, the former Maharashtra Chief Minister, resigning under pressure, a writ had been filed with the Supreme Court to determine whether a Governor could remove a chief minister who was aiding and abetting a cover-up of crimes in high places. The Supreme Court, in its ruling, clarified that the Governor is indeed the "appointing authority" and, in matters such as the removal of the chief executive on corruption charges, is not bound by the advice of the chief minister, even though the Governor is generally obligated to act on the advice of the chief minister in all other matters. It is highly improbable that a chief minister would advise the Governor to be removed. Therefore, in these specific matters, the court ruled that the Governor is not bound by the advice of the chief minister and can take action against the chief minister under the Prevention of Corruption Act of 1947.

Another significant point of contention revolves around Article 75 and 164 of the Indian Constitution. Article 75(2) of the Constitution states that "the ministers shall hold office during the pleasure of the President." This clause, as stated above, might suggest that the President can remove the Prime Minister by merely withholding pleasure, a point raised by many as a basis for removing the Prime Minister. However, the doctrine of pleasure is clearly constrained by two other articles. Article 74(1) of the Constitution explicitly states that "there shall be a council of ministers with the Prime Minister as the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice." Article 75(3) points out that the council of ministers shall be collectively responsible to the House of the People. When these articles are considered together, it becomes evident that the President cannot remove the Prime Minister unless a vote of no confidence motion against the government is successfully passed in Parliament.

Article 164 of the Constitution dictates that the Chief Minister is appointed by the Governor without any advice from anyone. However, the Governor appoints other ministers on the advice of the Chief Minister, and these ministers shall hold office during the pleasure of the Governor. This Article implies that the Governor cannot appoint an individual Minister at their discretion. Therefore, the Governor can dismiss a Ministry only on the advice of the Chief Minister.

Article 163(1) states that there shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions, except in cases where he is required by the Constitution to exercise his functions in his discretion. In the exercise of his discretionary powers, the Governor is not obligated to act on the advice of his Ministers or even to seek advice. This is made clear in clause 2 of Article 163, which states that if any question arises as to whether a matter falls within the Governor's discretionary powers, the decision of the Governor shall be final, and the validity of anything done by the Governor shall not be called into question on the grounds of whether he ought or ought not to have acted in his discretion.

The Constitution does not define the extent of the Governors' discretionary powers. This raises the question of whether the Governor, like the President, is merely a Constitutional head who must exercise his power in accordance with the advice of his ministers, who are responsible to the lower House of Parliament, or whether he possesses some real powers.

During the colonial rule before independence, Governors had absolute discretion to choose and dismiss Ministers under the Government of India Act 1935, sections 51(1) and 51(5).

The absence of a specific provision in the Indian Constitution regarding the removal of ministers from their portfolios after arrest within 48 hours raises concerns about potential discrimination and the supremacy of the law. To ensure fairness and prevent abuses of power, it is crucial to introduce a legislative provision that aligns ministerial accountability with the principles of equality, justice, and the rule of law. By doing so, India can strengthen its democratic framework and uphold the values it cherishes.

The writer is a research scholar. Views expressed are personal