The Minister Incurs Disqualification

A minister incurs a disqualification for the office if he violates his oath of office. By taking the oath, the person binds himself/herself to the discipline of the solemn parts of that oath. When the minister behaves in a manner that violates the whole or any part of that oath, it is incumbent upon him/her to resign his/her office forthwith. If the minister refuses to do so, it is the solemn duty of the Head of the State to secure his/her resignation or dismiss him/her. The person, entering the office of a minister of the Union of India, has to subscribe to the following oath of office, before he/she can enter office or touch any official document:

I,…..,swear in the name of God/ solemnly affirm that:

1)I shall bear true faith and allegiance to the constitution of India as by law established;

2)I will uphold the sovereignty and integrity of India;

3)I shall faithfully and consciously discharge my duties as a minister of the union;

4)I shall do right to all manner of people in accordance with the constitution and the law, without fear or favour, affection or ill-will.

An incumbent minister of the Union of India has written a Top Article for the Times of India dated 15 th September 2012, under the caption “Can’t Have Multiple Executives” and a subtitle “CAG policy prescriptions have triggered a constitutional crisis”. This article is derogatory to the Constitutional office of the Comptroller General of India and the Supreme Court, and hits the oath of office subscribed to by the minister. It is abundantly clear that the minister has no faith or allegiance to the constitution of India. Had he any, he would not have written such a derogatory article, much less publish it in the national daily. A minister of the Union of India is required to be circumspect on such issues and not shoot his mouth loosely as this particular minister has been repeatedly doing. What does he mean by “Multiple Executives”? Both the CAG and the Supreme Court are a part of the same constitution that has made this man a minister and their roles have been clearly laid down in the constitution. A minister betrays total ignorance if he pleads lack of knowledge of the constitution or is in complete contempt of these two constitutional institutions if does so knowingly, as is the case with this minister, who is a lawyer practicing law in the Supreme Court and ought to know better. He is under the clouded impression that there is nobody to exercise oversight on the Executive. Unfortunately for him, and fortunately for the people of India,both the CAG and the Supreme Court are mandated by the constitution to discharge that function only. The minister’s angst is: why should the governments actions be looked into by the two institutions?  That is flawed. That is unconstitutional. That is the view held by a minister pursuing a one point agenda of protecting the corrupt, whether in the 2G or CWG or Coal scams. The minister is not entitled to speak or write a word against the Comptroller & Auditor General of India or the Supreme Court. He has to observe the self imposed restriction on the freedom of speech and expression  a person agrees to while entering the office of a minister of the union of India under oath of office and secrecy. If he is interested in debate or writing, he has all the freedom if he first resigns. He can’t do both. That should be abundantly clear.

For a true appreciation of the above logic, it would be necessary to dwell in brief on both the SC and the CAG. Judiciary in India is independent under the Constitution. It is not another Department or Ministry of the Union of India. The independence of the Supreme Court  Judges is ensured by the following:-

1. by laying down that a supreme court judge can’t be removed except through the prescribed procedure for impeachment;

2. by forbidding discussion of the conduct of a judge in parliament except upon a motion for an address to the President for the removal of the judge;

3. the actions and decisions of the Supreme Court cannot be criticized and opposed by anybody . Any person doing so shall be liable to punishment for contempt of Court. This power is vested in the court to maintain its authority, dignity and honour.

A simple reading of the minister’s article would reveal that it “criticizes” the “actions and decisions” of the court and also “opposes” them publicly. It is outright contempt of the court as it challenges the authority of the court, is written in a language that is undignified for a minister of the union to use against the Supreme Court and dishonours the courts and its wisdom in administration of justice. Where from has this minister derived the power to “review” the judgement of the Supreme Court of India? Which Constitution has given him such authority? Or he has arrogated such authority to himself because he no more owes “true faith and allegiance to the constitution of India as by law established”? His arrogance, insolence and flippant attitude lead to only one conclusion that the minister has no faith in the institutions established by the law and cares too little for any law. Unless checked right now, such authoritarian proclivities of a  minister may turn lawless and exhort others also to become lawless because he hates “multiple executives” and considers himself to be the sole monarch of the Executive Authority of the Union of India.

The minister knows it very well but feigns ignorance while he attacks the CAG that the status of the CAG is the same as that of the Judge of the Supreme Court of India.  Article 148 of the Constitution lays down that ” There shall be a Comptroller and Auditor General of India who shall be appointed by the President by warrant under his hand and shall only be removed from office in like manner and on like grounds as a judge of the Supreme Court”. The writing is bold and clear, except for the incumbent minister and the scamsters, who have mounted an ugly attack on the CAG, because he has discharged his functions lawfully and in the process  exposed organised crime of corruption afflicting the Executive from top to toe. The minister is at his ministerial bullying best- such a frown on the face of a minister and angry words from his mouth can make any police or civil bureaucrat  to get himself immediately admitted to the I.C.U. of the best hospital with heart palpitation, blood pressure or even heart attack. That is how our corrupt “Executive” has conducted itself largely in the past few years, with rare exceptions only. That is not democracy. That is an effigy of democracy. We can’t agree to the establishment of the rule of corruption. The Executive the minister is talking so grandiosely is required to proceed with the reports of the CAG or the judgement  of the Supreme Court as laid down in the constitution of India rather than indulging in sustained propaganda, disinformation, canards and campaigns against these constitutional organs. They are as honourable as the Executive, but not more an iota. The Principle of Separation of Powers the minister covers in his article do not gag the CAG or the Supreme Court if the acts of omission or commission of the Executive fail to stand the test of audit or judicial consideration. The Executive can not demand of them consent or compliance to whatever the executive does or does not do. Being uncharitable, derogatory, disrespectful or critical of the CAG  gets nothing for the Executive excepting public scorn, derision and despise.

It was rather perplexing that a national daily like the Times Of India carried such a contemptuous article from an incumbent minister of the union of India against the CAG and the Supreme Court! It is hoped that the President of India, the Head of the State of India and custodian of the Constitution of India would secure the removal of this minister instantly, so that no other minister indulges in the indignity of such aberrations ever in future.

The whole article is full of invective, but I am quoting only some portions for ready reference and marking bold a few words for special attention:-

Quote”Of late, we have seen constitutional authorities indulging in policymaking. The CAG is a shining example of this aberration. The function of the CAG under Article 149 of the Constitution is to audit the accounts of the Union of India and of the states under a law made by parliament. The CAG is entitled to ensure that allocations made are duly applied or charged and that all expenditure conforms to the authority which governs it. The auditor is not a policymaker. Rightly so.

Whether or not a particular natural resource is to be auctioned is not for the CAG to decide. That is not an accounting function. The allocation of a natural resource is not a budgetary allocation; nor does it have any semblance to the application of a budgetary allocation. The government may decide that a natural resource, in given circumstances, be distributed in a manner that serves a particular social and economic objective.

The CAG is not accountable to any constitutional authority except to the extent that its findings are the subject matter of consideration by the PAC. In the 2G case, the CAG’s figures of ‘presumptive loss’ based on a policy option of auctioning spectrum skewed public discourse. Somewhere in between the truth got lost. The CAG has now been emboldened to calculate private gain for entities in coal allocation at the astronomical figure of Rs.1,85,591.34 crore. Yet such audit reports lead to paralysis of parliament and all legislative business comes to a standstill. We are in the midst of a constitutional crisis because of the CAG’s policy prescriptions.

The CAG was perhaps emboldened by the fact that the Supreme Court, in a recent judgment, cancelled all 2G licences granted as on January 10, 2008. The court’s jurisdiction to set aside executive decisions cannot be questioned. Courts, however, can be questioned when a policy prescription by the court directs that natural resources be dealt with in a particular manner. Such a policy prescription by the court is flawed exercise of jurisdiction.

A court’s policy prescription can neither be questioned in parliament nor in a court of law subject to the possibility of a review, which is available only in theory. So policy decisions by courts or the CAG are abhorrent to the principle of separation of powers. Indeed they are antithetical to all we stand for in a vibrant evolving democracy.

 Not by the CAG. Not by courts.” UNQUOTE

The CAG has no contempt powers, but the Supreme Court has such powers and must exercise it, so that the authority of the court is not eroded and it is not publicly ridiculed. It must show such a minister how independent the Supreme Court in India is.

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