Swearing-in of Deputy CMs by Governor appears to be in violation of Article 164
Two Deputy Chief Ministers — K.S. Eshwarappa and R. Ashok — were administered the oath of office and secrecy by Karnataka Governor H.R. Bhardwaj along with Chief Minister Jagadish Shettar and 31 other Ministers.
If the appointment of two Deputy Chief Ministers in a single-party government has come as a surprise since it will undermine the authority of the Chief Minister, their swearing-in by the Governor appears to be in violation of Article 164 of the Constitution.
Sources in the Bharatiya Janata Party and in the State government told The Hindu that the swearing-in ceremony held on Thursday at the Raj Bhavan could have possibly ended with a walkout had Mr. Eshwarappa and Mr. Ashok not been administered their oath as Deputy Chief Ministers by the Governor. Though this could be challenged in a court of law, the two leaders did not want to be sworn in as mere Ministers and thereafter appointed Deputy Chief Ministers by the Chief Minister.
The swearing-in was preceded by serious discussions between the office of the Chief Minister and the office of the Governor on the subject of administering oath of office to Deputy Chief Ministers. Ultimately, the precedent in 2006 when B.S. Yeddyurappa was sworn-in as Deputy Chief Minister by then Governor, T.N. Chaturvedi was cited, and this was considered a way out for Mr. Bhardwaj to go ahead.
In 1992 Karnataka had a Deputy Chief Minister, S.M. Krishna, followed by J.H. Patel in 1994. Both were appointed Deputy Chief Ministers in a single-party government, given their seniority in their respective political parties — the Congress and the erstwhile Janata Dal.
In 2004 , when the first of the coalition governments (Congress-Janata Dal-[Secular]) took charge under the Chief Ministership of N. Dharam Singh, the present Congress leader, Siddaramaiah who was in the JD (S) was accorded the status. This was followed by the second coalition government with the Janata Dal (S) and the Bharatiya Janata Party sharing power resulting in Mr. Yeddyurappa being appointed the Deputy Chief Minister.
The classic case relating to the appointment of a deputy head of government is that of the late Devi Lal when he took charge as the Deputy Prime Minister in the V.P. Singh government. While being administered the oath of office and secrecy by the then President, R. Venkataraman (at the swearing-in ceremony held on December 2, 1989), he refused to repeat what he was expected to, an episode that Venkataraman has mentioned in the book Commissions and Omissions of Indian Presidents.”
Mr. Venkataraman said: “I asked my Secretary to convey to V.P. Singh that Devi Lal could be sworn in as a Minister and designated later as Deputy Prime Minister. But before anything could be finalised, the swearing-in ceremony commenced and V.P. Singh was sworn in as Prime Minister. Then Devi Lal was presented and when I administered oath as Mantri, he insisted reading it as Upa Pradhan Mantri. I corrected him saying Mantri again but the second time too he read it as Upa Pradhan Mantra. It was fully displayed in the live telecast of the proceedings. I did not want to create an ugly scene and therefore allowed Devi Lal to proceed as he wished.” It is another matter that Sardar Vallabhai Patel, Morarji Desai, Choudhary Charan Singh and Jagajivan Ram also served a stint as Deputy Prime Ministers.
The matter relating to the swearing-in ceremony was challenged in the Supreme Court (K.M. Sharma versus Devi Lal) and a Bench headed by Justice Ranganath Misra (former Chief Justice of India) in its judgment agreed that the oath should be viewed in two parts — descriptive and substantial. While the designation as Deputy Prime Minister is only descriptive, the oath of office and secrecy which he (Devi Lal) undertook is substantive and consequently does not vitiate the oath.
The argument that Devi Lal is only a Minister like the other members of the Council of Ministers though he has been described as Deputy Prime Minister and that it does not confer on him any power of the Prime Minister was also accepted.