the only sanction for the enforcement of collective responsibility is the “pressure of public opinion”
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL/CIVIL APPELLATE JURISDICTION
WRIT PETITION (CRIMINAL) NO. 113 OF 2016
KAUSHAL KISHOR … PETITIONER(S)
VERSUS
STATE OF UTTAR PRADESH & ORS. …RESPONDENT(S)
WITH
SPECIAL LEAVE PETITION @ (DIARY) NO. 34629 OF 2017
J U D G M E N T
V. RAMASUBRAMANIAN, J.
3. Thereafter, the Constitution Bench, by an order dated
24.10.2019, formulated the following five questions to be decided by
this Court:
“…1) Are the grounds specified in Article 19(2) in
relation to which reasonable restrictions on the right
to free speech can be imposed by law, exhaustive, or
can restrictions on the right to free speech be imposed
on grounds not found in Article 19(2) by invoking other
fundamental rights?
2) Can a fundamental right under Article 19 or 21 of
the Constitution of India be claimed other than against
the ‘State’ or its instrumentalities?
3) Whether the State is under a duty to affirmatively
protect the rights of a citizen under Article 21 of the
Constitution of India even against a threat to the
liberty of a citizen by the acts or omissions of another
citizen or private agency?
4) Can a statement made by a Minister, traceable to
any affairs of State or for protecting the Government,
be attributed vicariously to the Government itself,
especially in view of the principle of Collective
Responsibility?
5) Whether a statement by a Minister, inconsistent
with the rights of a citizen under Part Three of the
Constitution, constitutes a violation of such
constitutional rights and is actionable as
‘Constitutional Tort”? …”
.....
112. The expression “collective responsibility” can be traced to some
extent, to Article 75(3) insofar as the Union is concerned and to
Article 164(2) insofar as the States are concerned. But in both the
Articles, it is the Council of Ministers who are stated to be
collectively responsible to the House of the People/Legislative
Assembly of the State. Generally collective responsibility of the
Council of Ministers either to the House of the People or to the
Assembly should be understood to correlate to the decisions
and actions of the Council of Ministers and not to every
statement made by every individual Minister.
113. In State of Karnataka vs. Union of India.108
, a Seven
Member Constitution Bench of this Court, while dealing with a
challenge made by the State of Karnataka in the form of a civil suit
under Article 131, to the appointment by the Central Government, of
a commission of enquiry against the Chief Minister of Karnataka,
had an occasion to consider the exposition of the words “collective
108 (1977) 4 SCC 608
139
responsibility” appearing in Article 164(2). After indicating that
collective responsibility is basically political in origin and
mode of operation, Beg, C.J. opined in the said case as follows:
“46. The object of collective responsibility is to
make the whole body of persons holding
Ministerial office collectively, or, if one may so
put it, “vicariously” responsible for such acts of
the others as are referable to their collective
volition so that, even if an individual may not be
personally responsible for it, yet, he will be
deemed to share the responsibility with those who
may have actually committed some wrong. …
47. Each Minister can be and is separately responsible
for his own decisions and acts and omissions also.
But, inasmuch as the Council of Ministers is able to
stay in office only so long as it commands the support
and confidence of a majority of members of the
Legislature of the State, the whole Council of Ministers
must be held to be politically responsible for the
decisions and policies of each of the Ministers and of
his department which could be presumed to have the
support of the whole Ministry. Hence, the whole
Ministry will, at least on issues involving matters of
policy, have to be treated as one entity so far as its
answerability to the Legislative Assembly representing
the electors is concerned. This is the meaning of the
principle underlying Article 164(2) of the Constitution.
The purpose of this provision is not to find out facts or
to establish the actual responsibility of a Chief
Minister or any other Minister or Ministers for
particular decisions or Governmental acts. That can be
more suitably done, when wrongful acts or decisions
are complained of, by means of inquiries under the
Act. As already indicated above, the procedure of
Parliamentary Committees to inquire into every legally
or ethically wrong act was found to be unsatisfactory
and unsound. The principle of individual as well as
140
collective ministerial responsibility can work most
efficiently only when cases requiring proper sifting and
evaluation of evidence and discussion of questions
involved have taken place, where this is required, in
proceedings before a Commission appointed under
Section 3 of the Act.
48. Textbook writers on Constitutional Law have
indicated how collective ministerial responsibility to
Parliament, which has essentially a political purpose
and effects, developed later than individual
responsibility of Ministers to Parliament which was
also political in origin and operation. It is true that an
individual Minister could, in England, where the
principle of individual and collective responsibility of
Ministers was evolved, be responsible either for
wrongful acts done by him without the authority of the
whole cabinet or of the monarch to support them, or
under orders of the King who could, in the eye of law,
do no wrong. But, apart from an impeachment, which
has become obsolete, or punishment for contempts of
a House, which constitute only a limited kind of
offences, the Parliament does not punish the offender.
For establishing his legal liability recourse to ordinary
courts of law is indispensable.”
114. Quoting from Wade and Phillips on Constitutional Law, this
Court pointed out in the State of Karnataka (supra) that
“responsibility to Parliament only means that the Minster may
be compelled by convention to resign.”
115. The extent to which the enforcement of collective responsibility
can be taken was also indicated in the above decision as follows:
“50. The whole question of responsibility is
related to the continuance of a Minister or a
141
Government in office. A Minister's own acts or
omissions or those of others in the department in
his charge, for which he may feel morally
responsible, or, for which others may hold him
morally responsible, may compel him to resign. By
an extension of this logic, applied to individual
Ministers at first, emerged the principle of “collective
responsibility” which we find enacted in Articles 75(2)
and 164(2) of our Constitution. The only sanction for
its enforcement is the pressure of public opinion
expressed particularly in terms of withdrawal of
political support by members of Parliament or the
State Legislature as the case may be.”
116. In other words, this Court indicated that while a Minister may
be compelled to resign for his individual acts of omission or
commission, the only sanction for the enforcement of collective
responsibility is the “pressure of public opinion”.