Breach of ethics

Recent Cabinet meetings in Bihar evoke fears of greater transgressions in the future.

Chief Minister Nitish Kumar with his new deputy, Tejashwi Yadav, at their swearing-in ceremony in Patna’s Raj Bhavan on August 10. | Photo Credit: PTI

India advisedly adopted the Cabinet as its main executive authority. Vallabhbhai Patel said, at a joint meeting of the Union and State Constitution Committee on June 7, 1947, “We have opted for the parliamentary system of Constitution, the British type Constitution with which we are familiar.” The presidential system was decisively rejected. At the core of the British Constitution lies the Cabinet of Ministers with its own time-honoured rules and conventions. Debates in the Constituent Assembly and rulings of the Supreme Court establish beyond doubt the relevance of Britain’s unwritten conventions that support its constitutional system. Some of them we have adopted in the written text of our Constitution. The members of the Council of Ministers, with the Prime Minister at the head, have to take the oath of office and the oath of secrecy.

Which is why a news report published in The Hindu of August 20, 2022, should disturb all who hold our constitutional system dear. This report is by Amarnath Tewary from Patna. It says: “Rashtriya Janata Dal chief Lalu Prasad Yadav’s elder son-in-law [Shailesh Kumar] and Deputy Chief Minister Tejashwi Yadav’s political aide [Sanjay Yadav] allegedly attending official meetings in Patna, along with ministers and officials, has courted controversy while [the] BJP, slamming the government, asked Chief Minister Nitish Kumar whether he has allowed son-in-laws [sic] and political aides of Ministers to attend official meetings in his government.”

Senior State BJP leader and Rajya Sabha member Sushil Kumar Modi slammed the Mahagathbandhan government while tweeting pictures of both Shailesh Kumar and Sanjay Yadav attending official meetings. “Has Chief Minister Nitish Kumar allowed son-in-laws, brother-in-laws and political advisers of ministers to attend official meetings?” he asked.

The BJP’s Sushil Kumar Modi has drawn attention to the violation of Cabinet convention under Nitish Kumar’s watch. | Photo Credit: PTI

Serious wrongs have small beginnings. Will this breach, serious in itself, extend to meetings of the State Cabinet and to its committees? The Third Schedule of the Constitution advisedly prescribes an oath of office and, independently, an oath of secrecy for Ministers, Central or State. An outsider is under no oath whatever.

Taking such liberties strikes at the very heart of India’s Cabinet system adopted at the Centre and in the States under the Constitution. In his authoritative and detailed work Cabinet Government, which has stood the test of time, Sir Ivor Jennings opined that Ministers, who are not of Cabinet rank have also to take the oath of secrecy.“The Prime Minister may request the attendance of any person, whether a Minister or not, to give advice on a particular matter” — on which the Cabinet alone deliberates. The outsider who has been invited to sit in does not. This applies to the Attorney-General, the Lord Chancellor who is head of the Judiciary, and the Chiefs of State of the armed forces. They may only give opinion and advice. They do not join in the Cabinet’s deliberations.

The Cabinet’s decisions bind all, including the Prime Minister, his colleagues and the civil servants. The Cabinet has been described as “such of Her Majesty’s confidential servants as are of the Privy Council”. The nature of the Cabinet is more easily explained by analogy than by definition. It is the board of directors for the country and all those countries which possess the parliamentary system. In the U.K. it is said to be a body of servants of the Crown because, usually, its members hold office under the Crown, though, members without portfolio are not uncommon. They are said to be confidential servants because they determine the main issues of the ‘Queen’s’ policy. They belong to the Privy Council because, in Britain historically, the Cabinet is a private meeting of those Privy Councillors in whom the sovereign has particular ‘confidence’ for the time being.

Highlights

• Lalu Yadav’s son and Tejaswi Yadav’s aide attend official meetings of Bihar’s new government.
• There are worries that this breach of Cabinet convention may lead to greater transgressions in future.
• Cabinet members are bound by their oath of office and oath of secrecy.
• Outsiders are under no such oath. That is why their presence in Cabinet meetings is unacceptable.

The definition is a relic of history. In substance, the Cabinet is the directing body of the national policy. Consisting of the principal leaders of the party in power, it is able to forward that policy by reason of its control of the House of Commons. Consisting, too, of the heads of the more important government departments, it is able to forward its policy by laying down the principles to be followed by the central administrative machine. Their service under the Crown is the legal explanation of the political fact that ministers hold important government offices. The oaths of office and secrecy restrain those who take it from publishing information obtained in the service of the State. It is difficult to believe that it is the oath alone and not the weight of tradition, the insistence of the Prime Minister, or the disapproval of colleagues, that makes the secrecy of the Cabinet more effective than is common in most governmental systems.

In spite of the oath, close relations between ministers and the press have not been unknown at various times in the history of the Cabinet the world over. The Official Secrets Act provides legal penalties for the disclosure of Cabinet secrets.

When Prime Minister Indira Gandhi (seated) convened her Cabinet to authorise the proclamation of Emergency, in effect a dictatorship, it was to ratify her own decision. | Photo Credit: The Hindu Archives

India’s Cabinet was not even informed, let alone consulted, before the nuclear tests. When Prime Minister Indira Gandhi convened her Cabinet to authorise the proclamation of Emergency, in effect a dictatorship, it was to ratify her own decision. Only a very few were informed earlier. The Cabinet meekly confirmed the Prime Minister’s decision.

Prime Minister Narendra Modi also transgressed Cabinet conventions when in November 2016 he announced the demonetisation decision without having consulted his ministers.