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(This is the second post in a two-part series by Mihir Naniwadekar.)

In an earlier post, we had looked at the decision and reasoning of the Bombay High Court in Civil Writ Petition 6996 of 2019 (Vijay Namdeorao Wadettiwar v State of Maharashtra). The Court held that appointing RVP as a cabinet minister (in circumstances when there was no possibility of his becoming a member of the legislative assembly during the remainder of the term of the assembly) was not liable to be quashed by the Court as being a fraud on the Constitution, and the remedy (if any) was with the electorate. The earlier post argued that the constitutional history relied on by the High Court did not entirely support the Court’s conclusion in that regard. This post considers how one can look at the concept of “fraud on the Constitution” and how such a concept may be tested in similar facts.

Evolving a framework for judicial interference in ‘political’ decisions

In order to consider what test should be applied in situations such as these – where the Court is called on to interfere in something generally considered a ‘political’ decision – it may be helpful to consider a recent example from the United Kingdom – R (on the application of Miller v The Prime Minister [Miller (No.2)]. The case concerned a challenge to the Prime Minister’s advice to the Queen for proroguing Parliament. The power to prorogue is a prerogative power of the Crown.

The Supreme Court of the United Kingdom explained [Para 35] that two distinct issues must be separated in considering prerogative powers:

The first is whether a prerogative power exists, and if it does exist, its extent. The second is whether, granted that a prerogative power exists, and that it has been exercised within its limits, the exercise of the power is open to legal challenge on some other basis. The first of these issues undoubtedly lies within the jurisdiction of the courts and is justiciable, as all the parties to these proceedings accept… The second of these issues, on the other hand, may raise questions of justiciability. The question then is not whether the power exists, or whether a purported exercise of the power was beyond its legal limits, but whether its exercise within its legal limits is challengeable in the courts on the basis of one or more of the recognised grounds of judicial review…

Having so held, the Court considered the standards by which the lawful limits are to be identified, to determine whether the power has indeed been exercised within those limits. After further analysis of the relevant principles, the Court considered that the fundamental principles of parliamentary sovereignty and accountability to the Parliament were part of the limits on the very existence of the power to prorogue. And the limit was then expressed using the following test [Para 50]:

… the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course…

In other words, an effects-based test was adopted: is the exercise of the power such that it has the effect of frustrating (without reasonable justification) a certain fundamental principle? Merely saying that a power is a “prerogative” power is unhelpful: no power, not even a prerogative power, can be exercised in a manner which has the effect of frustrating a fundamental constitutional value. In other words, for any and every power, there is an inherent limit in a constitutional setup that the power cannot be exercised to violate certain fundamental principles. The doctrine of “fraud on the Constitution” can perhaps be understood in such sense in the constitutional context.  

That may help us understand why appointing criminals to be ministers is not a “fraud on the Constitution” (because it is no part of the basic structure to prevent criminals taking part in politics, however much one may ethically detest it) while re-promulgating ordinances is (because it is a basic feature of the Constitution that laws must be made by an elected legislature exercising its legislative powers). Hence, re-promulgating ordinances is a “fraud on the Constitution”, because the power to issue ordinances is limited to doing so only in the situation of absolute necessity and ensuring legislative oversight as soon as practicable. To re-promulgate those ordinances would mean that this legislative oversight is lost: and the basic feature is therefore negated. As Justice Chandrachud observed in Krishna Kumar Singh:

… the court must adopt an interpretation which furthers the basic constitutional premise of legislative control over ordinances. The preservation of this constitutional value is necessary for parliamentary democracy to survive on the sure foundation of the rule of law and collective responsibility of the executive to the legislature. The silences of the Constitution must be imbued with substantive content by infusing them with a meaning which enhances the rule of law. To attribute to the executive as an incident of the power to frame ordinances, an unrestricted ability to create binding effects for posterity would set a dangerous precedent in a parliamentary democracy…

To come to the example given by the Bombay High Court of a person who is not a member of the Assembly being re-appointed over and over again by the simple expedient of him resigning before the six-month period is over: that is again a “fraud on the Constitution”. But why? The answer is perhaps because the relevant basic feature engaged is of legislative oversight over Minsters and the executive; and appointing the same person over and over again has the effect of frustrating that basic feature without any reasonable justification at all.

Justice Krishna Iyer’s statement in Shamsher Singh is well known, that “Not the Potomac, but the Thames fertilises the flow of the Yamuna…” The 4th edition of Halsbury’s Laws of England noted that since ministers must always be responsible to the Parliament, and the responsibility is both personal as well as collective. The rationale for the British convention that ministers must always be members of Parliament is that this ensures that ministers cannot avoid criticism of their ministry and are always accountable to Parliament for the conduct of their ministry. If it were open to become a minister without any requirement whatsoever to become a member, then this essential element of accountability to the Parliament is lost. The High Court of Australia held in Australian Capital TV & New South Wales v Commonwealth of Australia:

The very concept of representative government and representative democracy signifies government by the people through their representatives. Translated into constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their representatives. The point is that the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act…

In SR Chaudhari’s case, following this line of reasoning and expressly referring to these authorities, the Supreme Court held the second appointment of the same person as Minister (without being elected) as being invalid. In reaching this conclusion, the Court also approved of scholarly commentary that “It is basic to the system of responsible government that the Prime Minister and all the other ministers be members of parliament…” and further held:

Parliamentary democracy generally envisages (i) representation of the people, (ii) responsible government and (iii) accountability of the Council of Ministers to the Legislature. The essence of this is to draw a direct line of authority from the people through the Legislature to the Executive… The very concept of responsible Government and representative democracy signifies Government by the People. In constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their chosen representatives and for exercise of those powers, the representatives are necessarily accountable to the people for what they do. The Members of the Legislature, thus, must owe their power directly or indirectly to the people….

SR Chaudhari is clear authority for the proposition that ministerial responsibility is indeed a fundamental feature of the Constitution.

The above analysis has suggested one tentative conception of approaching the question of “fraud on the Constitution”; and it is argued that this conception appears to be in line with the approach of a 7-Judge Bench of the Supreme Court (per Chandrachud J.) in Krishna Kumar Singh. What needs to be examined is if the impugned action (the appointment of RVP) is such that it has the effect of frustrating a fundamental constitutional value (ministerial responsibility).

Conclusion: “Fraud on the Constitution” and Ministerial Responsibility

Adopting this approach, it could be contended that the effect on the underlying value of responsible government and legislative oversight is such that if a person is in a position of being unable to face by-election, then in every case that person is ineligible to be Minister. Readers will recollect that in the Constituent Assembly, one of the reasons given by Dr. Ambedkar for rejecting the proposed amendment of Mohd. Tahir was that it was desirable to leave open the flexibility to the government to appoint the best person as minister “on the assumption that he shall be able to get himself elected…” In a situation of a vacancy shortly before the expiry of the term of the legislature, when no by-election at all is possible, then that vacancy should be filled up only by an existing member of the assembly: not because the Constitution requires this in express terms, but because not doing so will in every case have the effect of negating an underlying constitutional value. True, the Constitution permits a non-member to be a minister: but that permission is circumscribed by the underlying values which mandate that the person so appointed must necessarily be one who is capable of becoming a minister. The question which was left open in SR Chaudhari (“we have declined an invitation of learned counsel for the appellant to express our opinion on the question whether a non-legislator can be appointed as a Minster, if on the date of such appointment, he suffers from a constitutional or statutory disqualification to contest the election within the next six consecutive months”) can perhaps be answered in this manner and contrary to what emerges from the Bombay High Court decision. This fits in well with the decision of the Supreme Court not just in SR Chaudhari but also in BR Kapur; and also does not detract from the general rule that a non-member who is capable of being elected in six months can be so appointed.

Even if one were to take a different view, the analysis required to uphold the appointment would be of a somewhat different nature; and would have to focus on the effect of the appointment on the underlying constitutional value. It would have to be argued, perhaps, that the principle of collective responsibility is in itself sufficient to ensure that there is no adverse effect on the underlying constitutional value of ministerial responsibility. Indeed, while one of Dr. Ambedkar’s reasons (which we have already noted in the earlier post) for rejecting Mohd. Tahir’s amendment was that there was an underlying assumption that the minister would get elected as member, Dr. Ambedkar also offered another reason for rejecting the amendment:

…My second submission is this, that the fact that a nominated Minister is a member of the Cabinet, does not either violate the principle of collective responsibility nor does it violate the principle of confidence, because if he is a member of the Cabinet, if he is prepared to accept the policy of the Cabinet, stands part of the Cabinet and resigns with the Cabinet, when he ceases to have the confidence of the House, his membership of the Cabinet does not in any way cause any inconvenience or breach of the fundamental principles on which Parliamentary government is based…

The argument would then be that the framers regarded collective responsibility in itself as being sufficient to protect the underlying constitutional value; and hence, the fact that a particular minister may not even be capable of becoming a member of the assembly is irrelevant. That is certainly a proposition which would require careful consideration: however, it is suggested that this reasoning – that collective responsibility is in itself sufficient to ensure that the fundamental value of ministerial responsibility is not lost – does not sit comfortably with the reasoning of the Supreme Court in Kapur and Chaudhari.

Perhaps, the decision of the Bombay High Court – if carried in appeal to the Supreme Court – may give the Supreme Court a chance to further consider how the doctrine of “fraud on the Constitution” is to be applied and also to elucidate how exactly the fundamental constitutional value of ministerial responsibility is to be protected in the constitutional scheme.

[The author is grateful to Gautam Bhatia for his comments on a draft version of this essay.]