Origin

Collective responsibility is a cornerstone of the Westminster model. Initially developed- as a constitutional convention in Britain between 1780 and 1832, it began to appear- in text-books in the 1860s and 1870s.

In 1867, Walter Bagehot, in his classic work titled “The English Constitution”, called the “House of Commons” as “a real choosing body”, which decides the path that the nation would follow.- The consequence of such a systemic expectation in the British Parliamentary system, Bagehot declared, was that the public can, “through Parliament, turn out an administration which is not doing as it likes, and can put in an administration which will do as it likes”[1] . The responsibility of Ministers was set as their liability “to have all their public acts discussed in Parliament”. The Cabinet was defined as “a collective body bound together by a common responsibility”.

Later, Lord Salisbury formulated this common responsibility thus:

“[F]or all that passes in a Cabinet, each Member of it who does not resign is absolutely and irretrievably responsible, and that he has no right afterwards to say that he agreed in one case to a compromise, while in another he was persuaded by one of his Colleagues… It is only on the principle that absolute responsibility is undertaken by every Member of a Cabinet who, after a decision is arrived at, remains a Member of it, that the joint responsibility of Ministers to Parliament can be upheld, and one of the most essential conditions of Parliamentary responsibility established.”

Ministers were liable to lose their offices, if they failed to retain the confidence of the House of Commons or the Parliament. In the 1880s, Dicey, “Law of the Constitution”, propounded that:

“[It] is now well-established law that the Crown can act only through Ministers and according to certain prescribed forms which absolutely require the co-operation of some Minister, such as a Secretary of State or the Lord Chancellor, who thereby becomes not only morally but legally responsible for the legality of the act in which he takes part.

Hence, indirectly but surely, the action of every servant of the Crown, and therefore, in effect of the Crown itself, is brought under the supremacy of the land. Behind parliamentary responsibility lies legal liability, and the acts of Ministers no less than the acts of subordinate officials are made subject to the rule of law.” This fixed the responsibility of the Cabinet for the “general conduct of affairs” of the government.

In the twentieth century, Sir Ivor Jennings conceptualized collective responsibility of a Cabinet Government, thus: “A Government that cannot make up its mind on a fundamental issue ought not to be the Government and will be so regarded in the constituencies. Its fall may be regarded as imminent.”[2] The conduct of the cabinet determines the fate of the government.

Aspects of Collective Responsibility

Collective responsibility of Ministers to the Parliament is comprehended in two aspects:

(i) collective responsibility of Ministers for the policies of the government; and

(ii) individual responsibility of Ministers for the work of their governments.[3]

The idea behind this bifurcation, as explained by Birch, is to hold a government “continuously accountable for its actions, so that it always faces the possibility that a major mistake may result in a withdrawal of Parliamentary support.”

In the British system, collective responsibility work on basis of certain precepts which define and regulate the existence of government. Geoffrey Marshall (1989) identifies three strands within the principle- :

i) The confidence principle: a government can only remain in office for so long as it retains the confidence of the House of Commons, a confidence which can be assumed unless and until proven otherwise by a confidence vote;

ii) The unanimity principle: all members of the government speak and vote together in Parliament, save in situations where the Prime Minister and the Cabinet themselves make an exception such as a free vote or an ‘agreement to differ’; and

iii) The confidentiality principle: unanimity, as a universally applicable situation, is a constitutional fiction, but one which must be maintained, and is said to allow frank ministerial discussion within the Cabinet and the Government.

A study conducted by the London School of Economics and Political Science in 2007 examined the individual and collective performance of Ministers between 1945-1997. The findings of the study revealed that though the principle acted “as a form of protection for an individual Minister when policies pursued in his department are deemed to have failed”, it also induced a cost for being a member of the government. All the Ministers of the government, as a consequence of the principle of solidarity, were perceived as jointly sharing the responsibility of policy failure.[4]

The doctrine of collective responsibility has evolved as one of the indispensable features of the parliamentary system of government and reflects the political engagement between government and Parliament. In a parliamentary democracy, the nuances of the doctrine are political.[5]

To maintain the notion of “collegiality and coherence”, the ministers work as a team. In the Australian context, Wanna (2012) postulates that collective responsibility thereby acts as an under-flowing current necessary for the survival of a government:

“To survive as a government, ministries must show they can maintain the confidence of the house, put up a credible front to their political opponents and the media, and as a working ministry find ways to deal with the business of state, much of which will involve making collective decisions and imposing collegial executive authority.”[6]

Granville Austin observes that the framers of India’s Constitution conceived that the democratic values of the Constitution would be achieved in “the institutions of direct, responsible government”. The members of the Constituent Assembly borrowed the Parliamentary-Cabinet form of government from British constitutional theory and adopted it into our Constitution. Though the Constituent Assembly did not adopt British constitutional conventions in the written form, collective responsibility of the Cabinet was specifically incorporated into India’s constitutional framework.

There is a direct relationship between the principle of collective responsibility and government accountability. This relationship is conceptualized in “The Oxford Companion to Politics in India”:

“[A]ccountability can be defined in terms of outcomes rather than processes of government… It also includes the criterion of responsiveness to changes in circumstances that alter citizen needs and abilities… In other words, accountability refers to the extent to which actual policies and their implementation coincide with a normative ideal in terms of what they ought to be… In this broad sense, accountability amounts to evaluating the nature of governance itself, in outcome-oriented terms.”[7]

The Oxford Handbook of the Indian Constitution– (2016) adverts to several facets of collective responsibility:

“Collective responsibility has several facets. First, ministers act as a common unit; cabinet decisions are binding on all ministers. Disagreements, if any, may be aired in private. Ministers, however, speak in one voice and stand by one another in Parliament and in public. Those that cannot reconcile themselves with particular government policies, or are unwilling to defend them in public, must resign. Conversely, decisions of particular ministers, unless overruled, are decisions of the government.”

The principle has also been considered as a political component which political parties in power invoke to maintain party discipline. Collective responsibility also exists in practice in situations where ministers have no knowledge of the actions taken by the subordinate officers of their respective departments:

“Governing is a complex affair; hundreds of officials in dozens of departments make many decisions on a daily basis… These officials are also part of the executive, and ministers are responsible for those that serve in their departments… Ordinarily, ministers busy themselves with policy issues; matters of implementation are usually left to officials over whom ministers command little or no oversight. Yet, when they act, subordinates notionally do so on behalf of ministers. Ministers, therefore, cannot seek refuge in ignorance. Nor can they absolve themselves by pointing to their officers. Both inside and outside Parliament, they are accountable for their departmental shortcomings.”[8]

Supreme Court of India on the Principle of Collective Responsibility

Collective responsibility, as a principle and practice, has been given effect authoritatively in several judgments of this Court. The Constitution Bench of this Court, in Rai Sahib Ram Jawaya Kapur v The State of Punjab[9], examined the functions of the executive. The Court held that the President is “a formal or constitutional head of the executive” and that the “real executive powers” are vested in the Ministers or the Cabinet:

“Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State…

In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, “a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part”.

The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them.”

The relationship between the responsibility of the Cabinet and individual Ministers was dealt with in a Constitution Bench decision in A Sanjeevi Naidu v State of Madras[10]– :

“The cabinet is responsible, to the legislature for every action taken in any of the ministries. That is the essence of joint responsibility. That does not mean that each and every decision must be taken by the cabinet. The political responsibility of the Council of Ministers does not and cannot predicate the personal responsibility of the Ministers to discharge all or any of the governmental functions. Similarly an individual Minister is responsible to the legislature for every action taken or omitted to be taken in his ministry. This again is a political responsibility and not personal responsibility.”

In Samsher Singh v State of Punjab[11], Chief Justice AN Ray (speaking for the majority) opined that Ministers must accept responsibility for every executive act:

“In England, the sovereign never acts on his own responsibility. The power of the sovereign is conditioned by the practical rule that the Crown must find advisers to bear responsibility for his action. Those advisers must have the confidence of the House of Commons. This rule of English Constitutional law is incorporated in our Constitution. The Indian Constitution envisages a parliamentary and responsible form of Government at the Centre and in the States and not a Presidential form of Government. The powers of the Governor as the Constitutional head are not different.”

A seven-judge Bench decision of this Court in State of Karnataka v Union of India[12] explained the substance of a government’s collective responsibility. All the Ministers are treated as one entity. A government could stay in office only so long as it commands the support and confidence of a majority of the Members of the Legislature. The government is politically responsible for the decisions and policies of each of the Ministers and of his department. The sanction against any government action was held to be embodied in the principle of collective responsibility, which is enforced by the “pressure of public opinion” and expressed specifically in terms of withdrawal of political support:

“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 is 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.”

The decision in Common Cause, A Registered Society v Union of India[13] delivered by a three-judge Bench held that the concept of collective responsibility is essentially a “political concept” and that the country is governed by the party in power on the basis of the policies endorsed by its Cabinet. The Court held that the concept of collective responsibility has two meanings:

“The first meaning which can legitimately be ascribed to it is that all members of a Govt. 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.”

The decision in Subramanian Swamy v Manmohan Singh[14] theorises that collective responsibility may be enforced only politically, thereby making its legal implications unclear. In this case, a Minister was charged with committing grave irregularities in the grant of telecom licenses. The appellant had provided documents to the Prime Minister’s Office (PMO) for the grant of sanction to prosecute under the Prevention of Corruption Act, 1988. This Court held:

“In our view, the officers in the PMO and the Ministry of Law and Justice, were duty bound to apprise Respondent No. 1 [Prime Minister] about seriousness of allegations made by the Appellant… By the very nature of the office held by him, Respondent No. 1 is not expected to personally look into the minute details of each and every case placed before him and has to depend on his advisers and other officers.

Unfortunately, those who were expected to give proper advice to Respondent No. 1 and place full facts and legal position before him failed to do so. We have no doubt that if Respondent No. 1 had been apprised of the true factual and legal position regarding the representation made by the Appellant, he would have surely taken appropriate decision and would not have allowed the matter to linger for a period of more than one year.”

The decision implied that “individual ministerial decisions… do not always generate collective legal responsibilities”

Collective responsibility represents a seminal principle for modern parliamentary democracies.- Collective responsibility of the Council of Ministers ensures accountability to the legislature and to the electorate. Collective responsibility governs the democratic process, as it makes a government liable for every act it does. It envisages that a government works effectively to ensure and fulfil the interests of the public. It purports to ensure transparency in government decisions. Collective responsibility rests on the foundations of constitutional morality, which reflects constitutional ethics.

Reference

Govt of NCT Delhi v. Union of India (2018)

[1] Walter Bagehot, The English Constitution, 2nd Edition (1873), at page 118, available at

[2] Ivor Jennings, Cabinet Government, Cambridge University Press (1959), 3rd Edition, at page 279

[3] AH Birch, Representative and Responsible Government, George Allen & Unwin Ltd (1964), at page 131

[4] Samuel Berlinski, Torun Dewan and Keith Dowding, “Individual and Collective Performance and the Tenure of

British Ministers 1945-1997”, London School of Economics & Political Science (February 2007), available at

http://eprints.lse.ac.uk/19281/1/Individual_and_Collective_Performance_and_the_Tenure_of_British_Ministers

_1945-1997.pdf

[5] V Sudheesh Pai, “Is The River Rising Higher Than The Source? Nature Of Rules Business – Directory Or Mandatory?” Journal of Indian Law Institute (2011), at page 513

[6] John Wanna, “Ministers as Ministries and the Logic of their Collective Action”, in Keith Dowding & Chris Lewis

(eds.), Ministerial Careers and Accountability in the Australian Commonwealth Government, ANU Press

(2012), available at http://press-files.anu.edu.au/downloads/press/p191121/pdf/ch023.pdf

[7] Dilip Mookherjee, “Government Accountability” in Niraja Gopal Jayal and Pratap Bhanu Mehta (eds.), The

Oxford Companion to Politics in India, Oxford University Press (2010), at page 477

[8] Shubhankar Dam, “Executive” in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds.), The Oxford

Handbook of the Indian Constitution, Oxford University Press (2016), at page 319

[9] (1955) 2 SCR 225

[10] (1970) 1 SCC 443

[11] (1974) 2 SCC 831

[12] (1977) 4 SCC 608

[13] (1999) 6 SCC 667

[14] (2012) 3 SCC 64