the immunity available to the President under Article 361 of the Constitution cannot be extended to the orders passed in the name of the President under Article 148 77(1) or 77(2).
122. The decision in Common Cause was little peculiar and riddled with some problems. The allotment of petroleum outlets by the then Minister of State for Petroleum and Natural Gas, under what was claimed to be a discretionary quota, was first set aside by this Court by a judgment reported in (1996) 6 SCC 530. Simultaneously, a showcause notice was issued to the then Minister Capt. Satish Sharma as to why a criminal complaint should not be lodged against him and why he should not be directed to pay damages for his malafide action in wrongfully allotting the petrol outlets. After the Minister responded to the showcause notice, an order was passed, reported in (1996) 6 SCC 147 593, directing the Minister to pay exemplary damages and also directing the initiation of prosecution. Later, a petition for review was filed by the Minister for recalling the order which directed payment of exemplary damages and also the registration of a case by the Central Bureau of Investigation. The decision in the petition for review, reported in (1999) 6 SCC 667, dealt with the question of collective responsibility in the context of the contention raised. It was argued by the delinquent Minister in the said case that under the business rules of the Cabinet, the act of a Minister is to be treated as the act of the President or the Governor as the case may be and that therefore the allotment made by him should be treated to have been made while acting only on behalf of the President. As an extension of this argument, it was also contended that the Minister having acted as a part of the Council of Ministers, his act should be treated to be the act of the entire Cabinet on the principle of collective responsibility. While rejecting the said contention, this Court held in Common Cause that the immunity available to the President under Article 361 of the Constitution cannot be extended to the orders passed in the name of the President under Article 148 77(1) or 77(2). Dealing with the concept of collective responsibility, this Court held in paragraph 31 as follows: “31. The concept of “collective responsibility” is essentially a political concept. The country is governed by the party in power on the basis of the policies adopted and laid down by it in the Cabinet meeting. “Collective responsibility” has two meanings: the first meaning which can legitimately be ascribed to it is that all members of a Government are unanimous in support of its policies and would exhibit that unanimity on public occasions although while formulating the policies, they might have expressed a different view in the meeting of the Cabinet. The other meaning is that Ministers, who had an opportunity to speak for or against the policies in the Cabinet are thereby personally and morally responsible for its success and failure.” 123. After having dealt with the concept of collective responsibility, this Court carved out an exception in paragraph 34 as follows: “34. From the above, it will be seen that in spite of the fact that the Council of Ministers is collectively responsible to the House of the People, there may be an occasion where the conduct of a Minister may be censured if he or his subordinates have blundered and have acted contrary to law.” 124. Again in paragraph 36 this Court held as follows: “36. Even in England, all Ministers and servants of the Crown are accountable to the courts for the legality of their actions, and may be held civilly and criminally liable, in their individual capacities, for tortious or criminal acts. This liability may be enforced either by 149 means of ordinary criminal or civil proceedings or by means of impeachment, a remedy which is probably obsolete. They are also subject to the judicial review jurisdiction of the courts. [See: Halsbury's Laws of England, Fourth Edn., (Reissue), Vol. 8(2), para 422.]”