U R RIGHT Mr. CM.............

By Prabhakar Timble
06 May 2012 06:22 IST

Chief Minister Manohar Parrikar is right. As per the election code of conduct the ruling party or the government should not do anything which gives them an undue advantage.  Ministers should not make use of their official status in election campaign and canvassing.  However, expansion of the cabinet and induction of ministers is the CMs prerogative. It’s his constitutional power which he claims to be guarding against all odds!  The Chief Minister is also right when he says that the election code of conduct is not a legal document and many of its provisions are unenforceable. At the most, the election code of conduct can keep in abeyance the bread and crumbs. The cake and pastry is inalienable. This is the message the Chief Minister wants to deliver.

The proposed induction of Alina Saldanha (wife of the ex-tourism minister Mathany Saldanha whose untimely and tragic death within two weeks of assuming office shook every Goan) tipped to be the BJP candidate for the ensuing bye-election is sought to be done taking shelter of Article 164 (4) of the Constitution of India which states “ A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister”. This provision does not mean that non-legislators should occupy ministerial berths. It makes it mandatory that no person can hold a ministerial position if such incumbent is not a member of the legislature for over six months. The Article 164(4) is at best in the nature of an exception to the normal rule of only members of the legislature being Ministers, with its effectiveness restricted to a short period of six consecutive months.

In the Constituent Assembly, Dr. B.R. Ambedkar, firmly stood in favour of this exceptional provision and argued that a person who was otherwise competent could be appointed a Minister on the assumption that he would be able to get himself elected from any constituency. “After all the privilege that is permitted is a privilege that extends only for six months. It does not confer a right to that individual to sit in the House without being elected at all”, Ambedkar said opposing the demand to make the elective element mandatory for Ministers. It is clear that this rule cannot be frustrated by giving a gap of a few days and reappointing the individual as a Minister, without his securing the confidence of the electorate. Politicians have played with this exception. In the state of Jharkhand, Shibu Soren occupied the ministerial berth for three tenures without becoming a member of the legislature. In 1996, Tej Prakash Singh was inducted as Minister in Punjab for a second term without facing the electorate forcing the Courts to set aside the re-appointment. Supreme Court rulings have held extended tenures as undemocratic, unconstitutional, improper and invalid and underlined that the reprieve for non-elected ministers cannot go beyond six months.

Article 164(4) has been invoked a number of times in States and at the Centre to induct persons in the cabinet who are not the members of Legislature at the time of such induction. In Goa, the Lt. Governor had sworn in Chief Minister Dayanand Bandodkar since he commanded the confidence of the Assembly and it was only later that he faced the electorate and took the seat in the legislature. After the landslide victory of AIADMK in Tamil Nadu, the Governor administered the oath of office to Chief Minister Jayalalithaa, though she was not an elected member and her nomination papers were rejected by the Returning Officer on ground of her conviction in a corruption case.

There is no constitutional irregularity with a person being inducted a Minister without being a member of the legislature. The issue is also not whether there can be a cabinet expansion during the operation of the election code of conduct. Sadananda Gowda, Chief Minister of the BJP ruled Karnataka State evaded cabinet expansion in February, 2012 quoting the operation of the election code of conduct in view of some bye-elections in the State. However, he continues to postpone the cabinet expansion even now, thereby meaning that there are problems of political management and that the election code of conduct came in as a handy alibi earlier.  

The main issue in respect of Alina Saldanha is whether a person who is supposed to file the nomination papers at the ensuing bye-election for which the election programme is already announced should be inducted as a Minister during the operation of the code of conduct for elections. Admitting that the election code of conduct cannot supersede the constitutional prerogative of the Chief Minister and further acknowledging that the ECI code has no legal force, such an induction of the candidate to the ministerial berth makes the loud announcement that the voters of Cortalim constituency would be fools to choose anybody else once a Minister is thrown in their lap. The impression that this is done with a view to influence the electorate in favour of the ruling party candidate is indelible.

Let me say that the Chief Minister is not violating any provision of the Constitution or of the election code of conduct by inducting Alina Saldanha. The ruling party may be giving an ugly proof to the people that we can use our “intelligence” and “legal craftsmanship” to convert an exceptional reprieve provided by the founding fathers of the Indian Constitution for immediate political gains. If the Chief Minister retreats, it is not surrender. I would call it high standards of constitutional ethics, morality and statesmanship unheard and unseen in the present days. The Governor could also intervene and defer as the Head of State. The best is for Alina Saldanha, the person to be inducted as Minister, who is always seen on camera swearing by Mathany’s legacy and values. She can halt this hurry and haste, earn higher esteem in politics and stop the first (constitutional?) nail which can pierce Mathany’s legacy to tatters. 

Disclaimer: Views expressed above are the author's own.

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Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

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