Herald: CAC: Stepping into a legal quagmire
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CAC: Stepping into a legal quagmire

11 Mar 2018 08:11am IST

Report by
VIBHA VERMA and JULIO D SILVA

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11 Mar 2018 08:11am IST

Report by
VIBHA VERMA and JULIO D SILVA

The formation of a Cabinet Advisory Committee in the absence of the CM is unprecedented and has evoked comment. The legal luminaries in the state have much to say and VIBHA VERMA and JULIO D SILVA spoke to several of them to get an idea

The formation of Cabinet Advisory Committee (CAC), perhaps for the first time in the history of Goa politics, has become the talk of the town with certain individuals questioning its legal sanctity. 

A week ago, ailing Chief Minister Manohar Parrikar constituted the three-member CAC comprising of Ramkrishna Dhavlikar, Vijai Sardesai and Francis D’Souza as a temporary arrangement to ensure state administration kept functioning despite his physical absence from the country. 

This new arrangement has triggered debate pan-Goa with legal experts having different opinions. Some concluded that Parrikar did  not appoint a minister in charge because he did not trust his colleagues. 

Noted lawyer Cleofato Coutinho is one among those who have raised this question. “There is no provision for a CAC under the Indian Constitution. The CAC is basically to advise the cabinet but this looks like an arrangement more to keep the allies happy or in good humour. They (ministers) will feel they are in the decision-making process,” he stated. 

To support his claim, the advocate cited example of former Finance Minister Pranab Mukherjee who while heading various ministerial groups had a CAC to advise the cabinet. This, Coutinho said was functioning under then Prime Minister Manmohan Singh and was meant to only advise the cabinet.  

He is backed by anther Counsel Yatish Naik who alleged this move had paralyzed the administration. “The constitutional guarantee as enshrined in our constitutional scheme and it   does not envisage such a committee. The charge of acting CM should have been handed over to somebody from amongst the cabinet colleagues by CM (Parrikar). But in doing this, the CM has plunged the state into administrative paralysis and utter chaos,” he remarked. 

Coutino went on to mention that a CM can continue even without portfolio as in the case of Delhi CM Arvind Kejriwal, and hinted that Parrikar should have followed the same footsteps. “The main portfolios are with CM (Parrikar) and this has created difficulty particularly in finance and mining sectors. If these portfolios were to be handed over to minister/s, the problem wouldn’t arise. He has retained the portfolios and not designated any minister to head the meetings or the cabinet in his absence. One can be CM without portfolios like Kejriwal, but for that you have to trust your colleagues,” he said. 

Naik too echoed similar view claiming that in the past ‘many-a-times we have witnessed precedents when CMs have handed over charge of acting CM in the absence of CMs availability in the state. 

Information gathered from some more legal experts and documents reveals that a cabinet meeting can be held by three ways – video conference (by amending the IT Act), by circulation or by physical meeting (a protocol which is otherwise followed by the State cabinet). However, Rules 16 and 17 of Goa Business Rules speaks about powers in absence of CM such as ‘allocation and transaction of Business Rules.’

Advocate Uday Bhembre while pointing out that a Cabinet Advisory Committee is unprecedented as such a committee has not been constituted in any of the States of the country cautioned that it could prove to be disastrous for the State in the future.

“By virtue of its nomenclature it is merely an advisory committee and has limited powers. Worse still every decision taken by the committee and implemented is liable to be challenged tomorrow in the court of law as there is no provision for such a committee in the Constitution,” he said.

Another former MLA Radharao Gracias quipped whether the Bharatiya Janata Party (BJP) is ever concerned about what is legal or not. “The BJP does exactly what it wants and then tries to justify it its action with law,” he alleged.

He pointed out that the Constitution allows for a chief minister to run the state with the help of a cabinet and opined that Manohar Parrikar should have resigned to go for his treatment. He said the government protocol had to be maintained and pointed out that while the concerned minister is empowered to decide upon certain issues, other decisions have to be taken by the cabinet.

“Cabinet decision can be taken either by discussion through a meeting or through circulating a note,” he said while asserting that Cabinet Advisory Committee is not a done thing.

“Probably Manohar did not want a Hindu Christian to officiate in his absence,” he quipped while pointing out that usually the deputy chief minister takes charge in the absence of the chief minister and added that

Advocate Carlos Alvares said the Cabinet Advisory Committee was unconstitutional and pointed out that the Constitution allows for a council of ministers headed by the Chief Minister to advise the Governor and added that nobody can usurp that power.

“That is the reason why Aires Rodrigues succeeded in getting the Parliamentary Secretaries removed as they were functioning as ministers,” he said wondering whether Parrikar did not trust anybody to be named as his substitute.

He also wondered whether decision taken by video conference will be valid as there will be no records of such a conference and there is no protocol laid down for such decisions. “Can a cabinet meeting be held via WhatsApp?” he asked.

“Who will these three ministers advise?” he asked while opining that Parrikar should have shared his portfolios with the ministers and remained the chief minister without any portfolio like Arvind Kejriwal in Delhi.

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