Parliamentary democracy generally envisages
(i) representation of the people,
(ii) responsible government and
(iii) accountability of the Council of Ministers to the Legislature.
The essence of this is to draw a direct line of authority from the people through the Legislature to the Executive. The character and content of parliamentary democracy in the ultimate analysis depends upon the quality of persons who man the Legislature as representative of the people. It is said that “elections are the barometer of democracy and the contestants the lifeline of the parliamentary system and its set-up”.
India has to a large measure adopted Westminster form of Government. This position was recognised in Shamsher Singh & Anr. vs. State of Punjab, [1975] 1 S.C.R. 814, when Justice Krishna Iyer observed:
“Not the Potomac, but the Thames fertilizes the flow of the Yamuna, if we may adopt a riverine imagery. In this thesis, we are fortified by the precedent of this Court, strengthened by Constituent Assembly proceedings and reinforced by the actual working of the organs involved for about a ‘silver jubilee span of time’.”
In the Westminster system, it is an established convention that Parliament maintains its position as controller of the executive. By a well settled convention, it is the person who can rely on support of a majority in the House of Commons, who forms a government and is appointed as the Prime Minister. Generally speaking he and his Ministers must invariably all be Members of Parliament (House of Lords or House of Commons) and they are answerable to it for their actions and policies. Appointment of a non-member as a Minister is a rare exception and if it happens it is for a short duration. Either the individual concerned gets elected or is conferred life peerage.
In Halsbury’s Laws of England (Fourth Edition) Volume 8 Para 819) dealing with British conventions it is observed:
“819. The paramount convention is that the Sovereign must act on the advice tendered to her by her ministers, in particular the Prime Minister. She must appoint as Prime Minister that member of the House of Commons who can acquire the confidence of the House, and must appoint such persons to be members of the ministry and Cabinet as he recommends. … … …. …. …. … …. … …
Since the Sovereign must always act upon ministerial advice, ministers are always politically responsible to the House of Commons for their acts, even if done in her name. Their responsibility is both personal and collective. … …. …. …. …. ….. ….. …… …. …. …. ….. ….. …… …. ….. …. ….. ….. …… ….
In para 1006 of Volume 34 of Halsbury’s Laws of England (Fourth Edition) it is recorded :
“1006. Effect of the presence of ministers in Parliament. In addition to the methods of parliamentary control, the practice and procedure of both Houses ensures that the action of the executive is always open to the criticism of Parliament. Ministers of the Crown cannot indefinitely remain in office without being members of either the House of Lords or the House of Commons. In either House it is permissible for members to address questions to ministers with regard to the administration of their departments, and in both Houses motions may be made reflecting on the conduct of a particular minister or of the government as a whole.”
Sir Ivor Jennings in his treatise on Cabinet Government, (Third edition page 60), while dealing with the convention relating to formation of Government in England, after a Prime Minister has been appointed says:
“It is well-settled convention that these minister should be either peers or members of the House of Commons. There have been occasional exceptions. Mr. Gladstone once held office out of Parliament for nine months. The Scottish law officers sometimes, as in 1923 and 1924, are not in Parliament. General Smuts was minister without portfolio and a member of the War Cabinet from 1916 until 1918. Mr. Ramsay MacDonald and Mr. Malcolm MacDonald were members of the Cabinet though not in Parliament from the general election of November 1935 until early in 1936.”
According to Wade and Bradley, “Constitutional and Administrative Law”, page 268:
“It is the convention that ministerial officer-holders should be members of one or other House of Parliament. Such membership is essential to the maintenance of ministerial responsibility…………When a Prime Minister appoints to ministerial office someone who is not already in Parliament, a life peerage is usually conferred on him. Canada as well as Australia also follow parliamentary system of government of Westminister style. In his treatise on the Constitutional Law of Canada , (4th Edition), Peter W. Hogg, Professor of Law, Osgoode Hall Law School, York University (page 243), discusses the characteristics of a responsible Government in a parliamentary system and the appointment of the Prime Minister and other Ministers of his cabinet. He says:
“The narrative must start with an exercise by the Governor General of one of his exceptional reserve powers or personal prerogatives. In the formation of a government it is the Governor General’s duty to select the Prime Minister. He must select a person who can form a government which will enjoy the confidence of the House of Commons. For reasons which will be explained later, the Governor General rarely has any real choice as to whom to appoint: he must appoint the parliamentary leader of the political party which has a majority of seats in the House of Commons. But it is still accurate to describe the Governor General’s discretion as his own, because unlike nearly all of his other decisions it is not made upon ministerial advice.
When the Prime Minister has been appointed, he selects the other ministers, and advises the Governor General to appoint them. With respect to these appointments, the Governor General reverts to his normal non-discretionary role and is obliged by convention to make the appointments advised by the Prime Minister. If the Prime Minister later wishes to make changes in the ministry, as by moving a minister from one portfolio to another, or by appointing a new minister, or by removing a minister, then the Governor General will take whatever action is advised by the Prime Minister, including if necessary the dismissal of a minister who has refused his Prime Minister’s request to resign.
It is basic to the system of responsible government that the Prime Minister and all the other ministers be members of parliament. Occasionally a person who is not a member of parliament is appointed as a minister, but then he must quickly be elected to Parliament. If he fails to win election, then he must resign (or be dismissed) from the ministry. The usual practice when a non-member of parliament is appointed to the ministry is that a member of the Prime Minister’s political party will be induced to resign from a ‘safe seat’ in Parliament, which will precipitate a by-election in which the minister will be the candidate from the Prime Minister’s party.”
Clause 51 of the Australian Constitution provides “a responsible Minister of the Crown shall not hold office for a longer period than three months unless he is or becomes a members of the Council or the Assembly”. Dealing with conventions being followed in Australia, Mr. Peter Hanks, in his commentary “Australian Constitutional Law”; (Second Edition) says :
“In every State we can confidently predict that ministers will be appointed from amongst the current members of parliament. Indeed the South Australian and Victorian legislation provide that ministers must be (or become within three months) members of one of the houses of parliament.” The following observations of the High Court of Australia in State of New South Wales vs. Commonwealth of Australia and another, 108 A.L.R. 577, are also educative :
“The Constitution none the less brought into existence a system of representative government in which those who exercise legislative and executive power are directly chosen by the people. …The very concept of representative government and representative democracy signifies government by the people through their representatives. Translated into constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their representatives. The point is that the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act.”
Reference
SR Choudhary v. State of Punjab (2001)