New Delhi: The Enforcement Directorate’s action against Tamil Nadu minister V Senthil Balaji followed by his arrest and subsequent hospitalisation hit a raw nerve, politically speaking. While chief minister MK Stalin was quick in advising Governor RN Ravi to divest his portfolio citing poor health, the governor disbelieved the reason.
In the hullabaloo that ensued, the government chose to make Balaji a ‘minister without portfolio’. The governor narrowly missed an opportunity to question if the state government is empowered to nominate ministers without portfolios in the absence of a constitutional mandate.
The President and governor are vested with executive power under Articles 53 and 154 respectively. Articles 74 and 163 also provide for the council of ministers to aid and advise the President and the governor.
Article 164(1) of the Constitution states that the CM shall be appointed by the governor and the other ministers shall be appointed by the governor on the ‘advice’ of the CM, and the ministers shall hold office during the pleasure of the governor.
A minister exercises legislative and executive powers only as a representative of the people. The business of the government is performed by a minister only with respect to the portfolio assigned. In the cabinet system of governance, the entire cabinet is responsible for its collective decisions as also for its individual ministerial decisions. Within this framework, wherefrom does the government derive power to appoint a ‘minister without portfolio’?
Indian history is replete with cases of such appointments. In 1956, Jawaharlal Nehru inducted VK Krishna Menon into the Union cabinet as a minister without portfolio, and again in 1962, he similarly appointed TT Krishnamachari. Lal Bahadur Shastri was inducted as a minister without portfolio when Nehru fell ill in 1964.
In 2003, Mamata Banerjee was inducted as a minister without portfolio under the National Democratic Alliance government and Murasoli Maran remained a minister without portfolio through hospitalisation until his death.
More such examples
In 2005, when Natwar Singh came under fire for his involvement in the oil-for-food programme in Iraq, the United Progressive Alliance government at the Centre retained him as a minister without portfolio. In 2013, Telangana Rashtra Samithi (now Bharat Rashtra Samithi) chief K Chandrashekar Rao was also similarly appointed by the central government.
In 2015, the then Tamil Nadu CM, O Panneerselvam, appointed Chendur Pandian as a minister after divesting his Hindu religious and charitable endowments portfolio owing to poor health.
In Tamil Nadu, two CMs handed over their portfolios to other ministers when they had medical emergencies. In 1984-85, CM MG Ramachandran requested governor SL Khurana to divest his portfolio and give the responsibilities to VR Neduncheziyan, who was later made the acting CM on the latter’s death.
In 2016, hospitalised CM J Jayalalitha was divested of her portfolios, which were handed over to her minister Panneerselvam while she continued as CM without a portfolio.
Ministers without portfolios do not head any specific ministry nor do they have carved-out responsibilities. A minister so inducted does not draw a salary and emoluments in the capacity of a minister but only as an elected member of the legislative assembly. However, they continue to enjoy the status and the privileges of a minister with a portfolio at the cost of the public exchequer.
In the Westminster system of governance in the UK, Canada, Australia and New Zealand, the practice of appointing a minister without portfolio is in vogue. But the person so appointed is always entrusted with specific responsibilities.
In India, Rule 4(3)(b) of the Presidential Order of January 14, 1961 made under the Government of India (Allocation of Business), 1961, allows the President on the advice of the prime minister to entrust responsibility for specified items of business to a Union minister without portfolio.
But there is no such provision under the Tamil Nadu Government Business Rules, 1978, for appointing a minister without portfolio. The executive power of the state derived from Article 166(2) & (3) cannot be amplified to include a minister without portfolio.
Acting like monarchs
If elected members cannot be assigned ministerial responsibility for whatever reasons, there cannot be a moral, legal or constitutional basis for executive heads to retain them as ministers without portfolio. The PM and CM are precluded from exercising powers like monarchs.
Any such ‘advice’ made by heads of state that is buttressed by political expediency only to personally aid an elected member and make him a sinecure minister is opposed to constitutional morality and integrity.
A shadow minister in the cabinet goes against the very grain of propriety in parliamentary democracy. In countries like Israel and Jamaica, the practice of appointing a minister without portfolio has come under sharp criticism as one without public responsibility and it is a political quid pro quo.
Our Constitution makers never envisaged that the cabinet would one day be converted into an asylum for elected members who are in conflict with law. Nor did they contemplate that executive heads would reward elected members a cabinet berth without entrusting responsibilities. A government of the people, for the people and by the people should not and cannot allow for political appeasement.
The concept of ‘minister without portfolio’ is in practice nothing less than a constitutional farce. The cabinet owes a collective responsibility to its people; if it is to continue to remain meaningful, fictional responsibilities cannot be allowed in any form or manner.
In the words of BR Ambedkar, “It is perfectly possible to pervert the Constitution without changing its form, by merely changing the form of the administration and making it inconsistent and opposed to the spirit of the Constitution. We have, as a people, chosen the route of democracy and the Constitution, so we really have no option but to school ourselves in constitutional morality.”
Let us fervently hope that our rulers would imbibe the constitutional ethos and uphold the majesty of democratic polity in the times to come.
RS Raveendhren, Advocate, Madras high court
