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| M J Antony: Bending rules of business | | The decision of an individual minister or official is not valid unless regulations are followed strictly |
| M J Antony / New Delhi Jun 30, 2010, 00:10 IST |
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Ministers who speak and act out of turn have been a blight on coalition governments and a delight for the mass media in recent times. There is another brand of loose cannons that passes orders sitting in ministers’ chambers without following the rules of business. The first sort causes embarrassment; the second type goes further and invites charges of corruption.
The founding fathers had foreseen such a possibility. Therefore, they introduced sufficient safeguards in Article 166 of the Constitution. According to it, all executive action of the government shall be taken in the name of the governor who shall make rules for convenient transaction of business of the government.
A question arose recently in the Supreme Court: Should the rules of business be followed mandatorily or were they mere guidelines for administration? Arrayed on one side were a large number of industries in Goa which were beneficiaries of a huge rebate in electricity charges. When it was withdrawn, they challenged the state action in the Bombay High Court and failed. The high court held that the rules of business were not followed when the rebate was granted.
When the industries moved the Supreme Court (Goa Glass Fibre Ltd vs State of Goa), their main contention was that the power minister had granted the concession and it was binding on the government. According to them, the legal flaw that the decision was not approved by the chief minister or the Council of Ministers did not matter as the rules of business were not mandatory. The court rejected the contention, thus restricting the scope of individual ministers taking important decisions on their own, affecting the revenues of the state.
This interpretation of Article 166 covers not only ministers who act as knight errants but also bureaucrats whose administrative orders could encroach upon the territory of government policy. The court stated with emphasis that “the Rules of Business are mandatory and must be strictly adhered to. Any decision of the government in breach of these rules will be nullity in the eye of the law”.
The consequences of not following the rules would be “disastrous” for democracy, the judgment said. “In a democratic set-up, the decision of the state government must reflect the collective wisdom of the Council of Ministers or at least the chief minister who heads the council. The fact that the decisions taken by the minister alone were acted upon by issuance of notification will not render them decisions of the government even if the government chose to remain silent and the secretary did not take any action.”
If an individual minister breaks the regulations, it would lead to a “chaotic” situation. “The chief minister would remain a mere figurehead and every minister will be free to act on his own by keeping the business rules at bay,” the court explained. Further, this would make it impossible to discharge the constitutional responsibility of the chief minister of advising the governor.
In the Gulabrao Keshavrao Patil vs State of Gujarat (1996) case, the court underlined that the decision of a minister was not final unless the rules of business were followed. It explained that the rules were made for the convenient transaction of business at various levels through designated officers. The decision of one minister will have financial and other implications on other ministries. Therefore, the chief minister can call for the files and engage other ministries in the decision.
It is not just individual ministers who may flout the rules. In the K K Bhalla vs State of Madhya Pradesh (2006) case, the government allotted land under the Jabalpur Development Authority to a person at concessional rates to set up a printing press, though the land was earmarked for commercial use. In this case, the Supreme Court stated that the decision was not taken by the appropriate ministry or authority. “Such a decision could not have been issued at the instance of the chief minister or any officer alone unless it is shown that they had such authority in terms of the rules of business.” Another chief minister’s decision was held to be violation of the rules of business in the Punjab State Industrial Development Corporation vs PNFC Karamchari Sangh (2006) case.
An officer cannot arrogate to himself the power to issue directions where even an individual minister cannot. In the State of UP vs Neeraj Avasthi (2006) case, the judgment said: “In the instant case, the directions were purported to have been issued by an officer of the state. Such directions were not shown to have been issued pursuant to any decision taken by the competent authority in terms of the Rules of Executive Business framed under Article 166 of the Constitution.”
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