A Minister Can’t Invoke Writ Jurisdiction Against His Own Govt Or Its Functionaries: Kerala HC [Read Judgment]

A division bench of the High Court of Kerala, comprising Justice PN Ravindran and Justice Devan Ramachandran, has held that a minister cannot invoke writ jurisdiction against his own government or its functionaries. The bench arrived at such a judicial analysis through two separate but concurring judgments. It observed that a minister, whilst holding such a position cannot invoke the extraordinary writ jurisdiction contained in Article 226, impugning the actions initiated by the government or its functionaries.

The bench was hearing the plea made by Thomas Chandy, a minister in Kerala. The minister had challenged the report of the District Collector that named him for reclaiming certain lands in alleged violation of the provisions contained in the Kerala Conservation of Paddy Land and Wet Land Act, 2008. The District Collector had forwarded the said report to Additional Chief Secretary, Revenue Department.

Chandy contended that he was not the owner of the lands mentioned in the report. It was further averred by the petitioner that the District Collector had formulated such a report after an enquiry in this regard in lieu of a communication by the Revenue Secretary, pursuant to certain directions made by another cabinet minister, namely Minister for Revenue, to enquire into the complaints received against alleged reclamation of land by a company named Water World Company Private Ltd, which runs an entity titled ‘Lake Place Resort’ in the said property. The petitioner, however, admitted in the writ petition that he is a council minister in Kerala.

As Per Justice PN Ravindran

In his judgment dismissing the writ petition on the ground of maintainability, Justice PN Ravindran held that the petitioner, as long as he remains a serving minister, cannot invoke the writ jurisdiction of the court seeking to prevent the State of Kerala and its officers from discharging executive functions pursuant to an order passed by yet another minister in the council of ministers.

He opined: “The fact that the petitioner is a Minister in the Council of Ministers of the State of Kerala is admitted. In paragraph 1 of the statement of facts, the petitioner has disclosed this fact. He has, in the writ petition, joined the State of Kerala and the Revenue Secretary as respondents in the writ petition. As a member of the State Cabinet, the petitioner is collectively responsible along with other members of the Cabinet to the Legislative Assembly of the State. In our considered opinion, the petitioner, who is a minister in the Council of Ministers of the State of Kerala, cannot, so long as he continues to be a Minister, invoke the writ jurisdiction of this court to prevent the State of Kerala and its officers from discharging executive functions pursuant to an order passed by yet another Minister in the Council of Ministers and thereby prevent action being taken under the Act.”

Justice Ravindran, whilst dismissing the writ petition as not maintainable, however, granted liberty to the petitioner to approach to ventilate his grievance if any on the report before the District Collector.

As Per Justice Devan Ramachandran

Justice Devan Ramachandran, in his judgment, observed that a serving minister cannot conduct himself in such way that would run affront of concept of ‘Cabinet Collective Responsibility’. The concept of ‘Cabinet Collective Responsibility’ was explained with specific reference to Articles 164 and 75 of the Constitution of India, which envisages that members of a cabinet must publically support a governmental decision taken in cabinet, even if they do not privately agree with it. The bench observed that ministers of a cabinet are deemed to be a single unit as per Article 164(2), and the legislature does not envisage a situation wherein an individual member of the Cabinet decides on his own and considers his causes individually, in conflict with others and present a complete disarray of the Legislature.

Touching upon the aspects of Cabinet Confidentiality and Cabinet Solidarity, Justice Devan explained the concept of ‘Cabinet Collective Responsibility’ as follows: “Article 164(2) of the Constitution of India makes it indubitable that the Cabinet shall be collectively responsible to the legislature. The word used is ‘collectively’, which means that the legislature will act cohesively as one unit. One cannot approbate a situation there under where an individual member of the Cabinet decides on his own and considers causes individually, in conflict with others and present a complete disarray before the legislature , which would be certainly contrary to the imperatives of the Article 164(2) of the Constitution of India. Viewed from that angle, it is certain that when a person acts as a Minister, he acts as a constituent of the Cabinet, and he cannot act against it or, in any matter, against the interests of the Government.”

Justice Ramachandran further held :“I am certain that a  person while occupying the position of a Minister cannot file a writ petition or other legal proceeding against the Government, of which he is a part challenging orders or action issued or initiated against him by the Government or its functionaries, alleging infraction of law by him, and that he cannot claim any right to mount such a challenge on the ground that he is a private citizen,  as long he continues to occupy the position of Minister.”

Coming to the facts of the case, the bench observed that the report of District Collector alleged reclamation of land by a company named Water World Company Private Ltd, wherein the petitioner was admittedly a non-executive director. The District Collector had formulated such a report after an enquiry in this regard in lieu of a communication by the Revenue Secretary, pursuant to certain directions made by another cabinet minister namely, Minister for Revenue. Hence the bench opined that the act of the petitioner is aimed at the actions initiated by one minister of the cabinet of which the petitioner is a member. The said conduct of the petitioner in the view of the bench, strikes at the very root of principle of ‘Cabinet Collective Responsibility’.

The bench, further summing up, stated that the report of the District Collector alleges of certain infractions committed by the company whilst in 2014, when the petitioner was admittedly the director of the company. The bench also said the above report does not attempt of any action against the petitioner personally, except that the company is sought to be proceeded and investigated against. The bench also added that the petitioner admittedly seemed to be more concerned about the media and his political rivals, than any legal prejudice that may be caused to him based on the above report.

The bench held that it does not impute anything culpable against the petitioner on him being merely named in the report, and left it open to the District Collector to take appropriate actions in the due course, as contemplated in law based on her report and further inquiry.