Examining the Discretion of a Chief Minister in not forming the Council of Ministers – By Pawan Reley

“The Prime Minister is not merely the first among equals, he is not merely a moon among lesser stars… He is rather a sun around which planets revolve” 

-(Jennings Ivor in ‘the Cabinet Government’)

The above quote about the position of the Prime Minister shall also apply to the Chief Minister of a State under the Constitution of India. It is this position of Chief Minister of Madhya Pradesh, which has been in polemic for many days. Almost every State in India has developed the practice and convention that first the Chief Minister is appointed and then, after few days other ministers in the Council of Ministers are appointed with the anxious consideration and advice of the Chief Minister. However, the Chief Minister of Madhya Pradesh has created the record by becoming the longest serving Chief Minister without Council of Ministers from 23.03.2020 to 21.04.2020 for almost 28 days. Meanwhile, the Governor of Madhya Pradesh passed two ordinances in absence of the aid and advice of the Council of Ministers except that of Chief Minister. The two ordinances are the Madhya Pradesh Finance Ordinance, 2020 and the Madhya Pradesh Appropriation (Vote On Account) Ordinance, 2020. This made Sr. Advocates and Rajya Sabha MPs Kapil Sibbal and Vivek K. Tankha write to the President of India over alleged undemocratic and unconstitutional functioning of the Government of Madhya Pradesh without a Cabinet. This further led to many Constitutional Crisis debates both in the political and legal arena. Subsequently on 21.04.2020 there was appointment of five ministers in the Council of Ministers. However, it is interesting to note that appointment of five ministers in the Council of Ministers is still inadequate as per the proviso clause of Article 164 (1A) of the Constitution of India that requires a minimum of twelve ministers including the Chief Minister to be in the Council of Ministers.

Thus, the aforementioned facts and circumstances in the state of Madhya Pradesh, raise many substantial questions of law in relation to interpretation of the Constitution of India, which can be emanated as:

In order to find out the answer for said questions, it is essential to have a Coup d’oeil on the relevant Articles of the Constitution of India (with the 91st Amendment to the Constitution of India adding Article 164 (1A) w.ef. 7.1.2004) :

Article 163 (1): Council of Ministers to aid and advise Governor.– (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.

Article 164 (1): The chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor: Provided that in the State of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work

[(1A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent. of the total number of members of the Legislative Assembly of that State: 

Provided that the number of Ministers, including the Chief Minister in a State shall not be less than twelve: 

(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.

Article 166 (1): All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.

Article 167. Duties of Chief Minister as respects the furnishing of information to Governor, etc.– It shall be the duty of the Chief Minister of each State-

(c) if the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.”

There are arguments put forth by the legal luminaries across the country that while reading the provisions of Part VI Chapter II of the Constitution of India particularly aforementioned provisions, the Governor cannot exercise his powers under Article 154 of the Constitution of India without the aid and advice of the Council of Ministers. In this regard there is a vide reference to the case of Samsher Singh vs. State of Punjab, (1974) 2 SCC 831 (Hereafter “Samsher Singh Case”) and Nabam Rebia And Etc. vs. Deputy Speaker, 2016 SCC OnLine SC 694 etc. in various articles published across many platforms. However, the said judgements, according to the best ability of the author, may not be applicable in the present circumstances taking place in Madhya Pradesh.

 It is to be noted that the said judgements, if summed up, held that Governor cannot act against or without the advice of the council of ministers. However, all these judgements projected the situation where the Council of Ministers were already in existence and the Governor despite of their existence and appointment either worked against the advice or without advice of the Council of Ministers. The said Judgements also discussed the discretion of the Governor, which he can exercise by or under the Constitution of India contrary to the advice of the Council of Ministers when the council of ministers are in existence. Further, the said judgements also discussed the discretion of Governor where he is required to dissolve the house without aid and advice of the council of ministers because the majority party has not proved the floor test. They also observed that the Governor under Article 213 can promulgate Ordinances, during the period when the House(s) of the State Legislature, is/are not in session but has to do with the aid and advice of the Council of Ministers with the Chief Minister as the head. 

However, the said judgements never referred to the situation where the Governor has acted only with the advice of the Chief Minister because the other ministers in the Council of Ministers have not been appointed due to the various circumstances prevailing in the State. Further, they also did not take into account a situation where the Governor is passing ordinance(s) only with the aid and advice of the Chief Minister due to the non-appointment of the other ministers in the Council of Ministers. It is to be noted that under the present circumstances, the question is not about the Governor acting without any advice of the Council of Ministers when they are in existence but that the Governor is acting only on the advice of the Chief Minister in the absence of the other ministers in the Council of Ministers since they have not been appointed yet.

It is to be noted that there are very few precedents related to the instant Constitutional crisis happening in the State of Madhya Pradesh. One of them is the judgement passed by the High Court of Gujarat in the case of Dattaji Chirandas vs State Of Gujarat And Anr, AIR 1999 Guj 48 (hereinafter the Dattaji Case), where the petitions under Article 226 of the Constitution were filed challenging the orders passed by the State Government replacing the Chairmen of about 12 statutory Boards and Corporations and 13 Government Companies/Societies. One of the grounds inter alia for challenging the order of removal was that when the impugned orders were passed on March 6/7, 1998, there was no Council of Ministers to aid and advise the Governor as contemplated by Article 163(1) of the Constitution and, therefore, the impugned orders issued in the name of the Governor were not legal and valid. The Chief Minister alone having been sworn in on March 4, 1998, the Governor could not have passed the impugned orders without the aid and advice of the Council of Ministers, which was formed only on March 13, 1998. Hence, the impugned orders passed in the interregnum have no existence in the eyes of law.

The Gujarat High Court, after scanning the anatomy of the relevant provisions of the Constitution of India and negating the contention put forth by the Petitioners, observed that:

“12. Having given anxious and thoughtful consideration to the rival submissions on the aforesaid contention, this Court is of the view that the moment the Chief Minister is sworn in, there comes into existence a Council of Ministers wherein more Ministers can be appointed subsequently, but till then the Chief Minister acting as the Council of Ministers is not deprived of his power and duty of aiding and advising the Governor under Article 163(1) of the Constitution.

Unless there is President’s Rule, there is always a Council of Ministers in a State. The Constitution does not prescribe any maximum or minimum number of Ministers and, therefore, in principle there is nothing in the Constitution to prevent the leader of the majority party or coalition commanding the confidence of the majority of the members of the Legislative Assembly carrying on the business of aiding and advising the Governor all by himself. The formation of the Council of Ministers is complete with the swearing in of the Chief Minister. The contention on behalf of the petitioners that the provisions of Article 167(c) of the Constitution requiring that it shall be duty of the Chief Minister, if the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council obviously contemplates a situation, which is generally prevalent but not required by the Constitution as a matter of law, that the Council of Ministers has more than one Minister. If the Chief Minister constituting the Council of Ministers all by himself can aid and advise the Governor as discussed above, it necessarily follows that in case the Governor requires any matter for reconsideration, the matter will have to be reconsidered by the Chief Minister acting as the Council of Ministers. When the Chief Minister takes oath of office, there is always the theoretical possibility and the general practice that subsequently more Ministers will be added to the Council of Ministers, but that does not mean that the Council of Ministers does not come into existence with the swearing in of the Chief Minister.”   

“14. Parliamentary form of Government is collective responsibility of the Council of Ministers and not the individual responsibility of the Chief Minister to the Legislative Assembly of the State. That may be so, but that is only begging the question because there is no minimum number of Ministers for a Council of Ministers to be formed. The principle of collective responsibility by itself would not mean that the Chief Minister cannot aid and advise the Governor before appointment of the other Ministers. Collective responsibility means all Ministers share collective responsibility even for decisions in which they have taken no part whatsoever or in which they might have dissented at the meeting of the Council of Ministers. Collective responsibility means that members of Council of Ministers express a common opinion. It means unanimity and confidentiality. However, when there is a difference of opinion, it is the individual Minister who has to reign and not the Chief Minister or the Prime Minister because if the Chief Minister or the Prime Minister were to resign the other Ministers cannot exist any more.”

16. In view of the above discussion, it is not possible to accept the contention urged on behalf of the petitioners that there was no Council of Ministers in existence when Shri Keshubhai Patel took oath of office of Chief Minister of Gujarat on March 4, 1998. Merely because there was substantial increase in the size of the Council from one to more, it cannot be said that the Council of Ministers came into existence for the first time on March 13, 1998….It is open to the Chief Minister to exercise all the powers of giving aid and advice to the Governor. It is only when the Chief Minister chooses to share the powers with other Ministers that under his advice the Governor allocates the business to other Ministers. It, therefore, follows that until the appointment of other Ministers and until the allocation of business by Governor at the advice of the Chief Minister, the power and duty to aid and advise the Governor under Article 163(1) remains with the Chief Minister.”

It is interesting to note that the aforementioned Judgement in Dattaji Case (1997) solely relied on the point that there was no provision in the Constitution prescribing the minimum or maximum limit of the ministers in the Council of Ministers. However, now the law has completely changed due to the 91st amendment to the Constitution of India in 2003, which added Article 164 (1A) providing both the maximum and minimum number of ministers limit for the formation of the Council of Ministers. For the sake of convenience Article 164 (1A) of the Constitution of India is extracted herein below:

“164 (1A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent of the total number of members of the Legislative Assembly of that State: 

Provided that the number of Ministers, including Chief Minister in a State shall not be less than twelve…”

After Article 164 (1A) came into existence through 91st Constitutional Amendment in 2003 with effect from 7.01.2004, it is axiomatic that Article 164 (1A) makes it mandatory that apart from the Chief Minister there have to be eleven other ministers in the Council of Ministers to aid and advice the Governor. Thus, conjoint reading of Article 163 (1) and Article 164 (1A) may provides the following:

“There shall be minimum twelve ministers in the Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions.”

The word ‘Shall’ under Article 163 (1) is mandatory because of its own very nature of appointing the Constitutional office/Post. There are many other articles in the Constitution of India, which provide for the appointment or election of a Constitutional office/post. For example, Article 52 read with Article 54 provides that there shall be a President of India and he shall be elected by the members of an electoral college consisting of the elected members of the both the house of Parliament and Legislative Assemblies of States. Article 63 provides that there shall be a Vice-President of India. Article 76 provides that the President shall appoint the Attorney General for India. Article 124 provides that there shall be Supreme Court of India consisting of a Chief Justice of India and other judges. Article 148 provides that there shall be Comptroller and Auditor-General of India etc. 

Thus, the relevant question to be asked here is whether it is the discretion of the members of an electoral college consisting of the elected members of the both the houses of Parliament and Legislative Assemblies of States to not elect the President? Whether it is the discretion of the members of both Houses of Parliament to not to elect the Vice-President of India? Whether it is the discretion of the President of India to not to appoint the Attorney General for India? Whether it is discretion of the President to not to appoint the Chief Justice of India? Whether it is the discretion of the President of India to not to appoint the Comptroller and Auditor-General of India? The answer for said questions will be “No”. The Constitution of India does not give any discretion to any authority to not to appoint or elect the other Constitutional office/post, if their appointment or election is mandated by the Constitution. It is to be remembered that all the organs, offices or posts enumerated under the Constitution of India are tied in one golden thread who are bound to perform their duty in time.  If it fails, it is not only one authority, office or post which fails but also the complete thread of the  Constitution of India. If the discretion is given to any authority to not to appoint or elect other Constitutional office/post, it will lead to a Constitutional chaos that was never intended by the forefathers of the Constitution of India. It is to be noted that the Constitution gives discretion to the Chief Minister merely in choosing whom to appoint the Council of Ministers and not in not to appoint other eleven ministers in the Council of Ministers as mandated by the  Constitution of India.

In the case of U.N.R. Rao Vs Indira Gandhi, (1971) 2 SCC 63 (hereinafter “Rao Case”), there was an argument made that there is no need of the Council of Ministers and the President can rule with the help of advisors. The Court did not accept this argument and held that the word “shall” under Article 74 (1) cannot be read as “may” and the expression is mandatory. It was observed that acceptance of such an argument would change the whole concept of the executive. It would mean that the President need not have a Prime Minister and/or ministers to aid and advise him in the exercise of his functions. In the absence of the Council of Ministers, no body would be responsible to the Lok Sabha and the President would be able rule with the aid of advisors. It was therefore, declared that the President cannot exercise the executive power, without the aid and advice of the Council of Ministers.

Thus, the appointment of other ministers in the Council of Ministers apart from the Chief Minister is mandated by the Constitution of India and it does not provide any discretion to the Governor or the Chief Minister to not to appoint eleven other ministers in the Council of Ministers.

Further, it also evinces that the formation of the Council of Ministers, after Article 164 (1A) came into existence, does not get completed merely with the swearing in of the Chief Minister. In order to complete the Council of Ministers, there have to minimum twelve ministers in the Council of Ministers with the Chief Minister at the head.

3. Whether the Governor can act on the aid and advice of the Chief Minister as the sole member of the Council of Ministers?

4. Whether the Governor is justified in promulgating the Madhya Pradesh Finance Ordinance, 2020 and the Madhya Pradesh Appropriation (Vote On Account) Ordinance, 2020 in absence of eleven other ministers in the Council of Ministers as mandated as per the proviso clause of Article 164 (1A) of the Constitution of India?

As stated earlier while answering Issue no. 1 and 2, that Article 164 (1A) makes it mandatory that apart from the Chief Minister there have to be eleven other ministers in the Council of Ministers to aid and advice the Governor. Thus, conjoint reading of Article 163 (1) and Article 164 (1A) provides that there shall be minimum twelve ministers in the Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions. Here the correct interpretation of the words “there shall be” is “there shall always be”. Thus, in other words it can also be said that the appointment of eleven Council of Ministers apart from the Chief Minister is a condition precedent for the exercise of the power or functions by the Governor. Any other interpretation to Article 163 (1) and Article 164 (1A) may lead to affect the entire chain of Constitutional Office/Post engrafted under Constitution of India. 

It shows that if the Governor, prior to the appointment of the Council of Ministers begins to issue official orders under the counter signature of some secretary under Article 166 (2) or issue of any ordinance under Article 213, then a Competent Court can strike down such an order, official act or ordinance as unconstitutional. Of course, there is clause (3) of Article 163, however, the said provision only bars the court from probing into the realm of “advice”, if any tendered by the Council of Ministers [S.R. Bommai vs. UOI, (1994) 3 SCC 1]. It does not bar the Court from inquiring into the fact that whether at the moment of time when such order, official act or ordinance was issued, there existed a Council of Ministers or not. In most cases, this tact may be taken judicial notice of by many courts or may be proved by the official gazette or other official papers. 

In the light of the said analysis, the Governor is not justified in promulgating the Madhya Pradesh Finance Ordinance, 2020 and the Madhya Pradesh Appropriation (Vote On Account) Ordinance, 2020 in the absence of eleven other Council of Ministers as prescribed under Article 164 (1A).

5. Whether the Constitution of India prescribes any limitation period within which the other ministers in the Council of Ministers are required to be appointed?

It relevant to note that the time period for appointment or election of Constitutional Office/Post is extremely relevant in order to protect the real intent of the provisions of the Constitution of India. No express provision, as per the best knowledge of the author, including Article 52, Article 55, Article 63, Article 76, Article 124 and Article 148 etc. provides any limitation period within which the respective Constitutional post/office including that of the Council of Ministers are required to be filled. It is this leniency in the limitation period provided by the Constitution of India, the undue advantage of which is being taken of in the State of  Madhya Pradesh in not timely appointing the other ministers in the Council of Ministers. However, when any provision in the Constitution of India is mandatory, the same has to be fulfilled forthwith otherwise it may make the purpose of those mandatory provisions otiose. When the Constitution of India makes any provision mandatory to appoint or elect certain  constitutional posts or office, then it becomes bounden duty of the appointing or electing authority to not to delay in such appointment. Otherwise it may lead to serious constitutional dilemma. For example what if the Governor appoints the Chief Minister and the other eleven ministers in the Council of Ministers after 3 years? What if the election of the President is conducted after two years when the office became vacant? What if the President appoints the Attorney General and the Comptroller and Auditor-General after 3 year when their office became vacant? If the authorities under the Constitution of India are given the discretion to delay the appointment or election of the Constitutional Post then it will be antithetical to the basic fabric of the Constitution of India. In these situations, when the express provision for the limitation is not provided for, the same has to be “implied” under the Constitution of India.

At this juncture, it is essential to note the observation laid down in Rao case in Paras No. 8 to 10 which was also reiterated  in Samsher Singh Case in Para No. 153, which is extracted herein below:

“…the harmonious reading of the mandatory character of Article 74 (1) along with Articles 75(2) and 75 (3) is that the President cannot exercise powers without the aid and advice of the Council of Ministers with the Prime Minister at the head….”

According to D.D. Basu, as mentioned in his Commentary on the Constitution of India, 9^th edition, Volume 7, Page No. 7415,  the upshot of said observation is that:

(a) There cannot be any vacuum in the office of the President even for a short time;

(b) The President cannot exercise any of his powers without having a Council of Ministers to advise him.

 This leads the author to interpret Article 163 (1) and Article 164 (1) read with Article 164 (1A) in the following way:

(a) There shall be a Governor and there cannot be any vacuum in the office of the Governor even for a short time;

(b) The Governor cannot exercise any of his powers without having a Council of Ministers to advise him except where he is authorised by the Constitution of India to use his discretion;

(c) The Governor, in order to exercise his power and functions under the Constitution of India , have to appoint the Chief Minister and at least eleven other ministers in the Council of Ministers;

(d) The Governor shall not make any delay in appointing the Council of Ministers because the limitation for the same has to be implied under the Constitution of India, if not expressly provided.

6. Whether the advice of the Chief Minister in not appointing the eleven other ministers in the Council of Ministers will be binding on the Governor?

If the Governor wants to appoint the other ministers in Council of Ministers but the Chief Minister advices the Governor to not to appoint them then this advice of the Chief Minister to the Governor will not extend to advising him to violate the clear mandatory provisions of the Constitution of India. In such situations it is the Constitutional duty of the Governor to disregard such advice and appoint the other eleven ministers in the Council of Ministers as mandated by Article 163 (1), Article 164 (1) read with Article 164 (1A) of the Constitution of India. For, if he acted otherwise, he would be violating the provisions of the mandatory provisions of the Constitution of India. It is to be noted that Article 164 (1) provides that the Governor with the advice of Chief Minister shall appoint other ministers. Article 164 (1) makes it desiderata on the part of the Governor to take advice of the Chief Minister in choosing whom to appoint in the Council of Ministers and not in not to appoint other minister  in the Council of Ministers. For example the proviso clause of Article 164 (1) mandates that in the States of Chhattisgarh, Jharkhand, Madhya Pradesh and Odhisha, there shall be a minister in charge of Tribal Welfare. If the Chief Minister advises the Governor to not to appoint the Minister of Tribal Welfare, then this advice will not be binding on the Governor because if Governor follows this advice then he will be violating the express provisions of the Constitution. In the similar way, Article 164 (1) nowhere gives any authority to the Chief Minister to advice the Governor to not to appoint  the other ministers in the Council of Ministers as mandated by the Constitution of India. 

Further, this advice of Chief Minister of not appointing the eleven other ministers in the Council of Ministers will not be construed to be advice under Article 164 (1) and thus will not be binding on him.

After analysing Article 163(1), Article 164 (1) and Article 164 (1A) of the Constitution of India, it becomes vivid and luminescent that the appointment of other eleven ministers in the Council of Ministers apart from the Chief Minister is mandated by the Constitution of India and it does not provide any discretion to the Governor or the Chief Minister to not to appoint them. Further, the formation of the Council of Ministers, after Article 164 (1A) coming into existence, does not get completed merely with the swearing in of the Chief Minister. In order to complete the formation of Council of Ministers, there have to be a minimum of twelve ministers in the Council of Ministers. The Governor cannot act on the aid and advice of the Chief Minister as the sole member of the Council of Ministers in order to exercise his power and functions. It also shows that the Constitution of India prescribes implied limitation period within which the other eleven ministers in the Council of Ministers are required to be appointed. Moreover, this advice of the Chief Minister of not appointing any other requisite Council of Ministers will not be construed to be an advice under Article 164 (1) and thus will not be binding on him.

However, it must not be forgotten that the 91st Constitutional Amendment Act, 2003 provided the minimum number of ministers in the Council of Ministers only for State and not for Union. There is still no provision for the minimum number of ministers in the Council of Ministers in the Union cabinet. Thus, the questions, in relation to the discretion of the President or the Prime Minister of India to not to appoint the other ministers in the Council of Ministers in the Union, are still open which may have bigger impact on the democratic fabric of the Country than that of one single State.

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Pawan Reley is an Advocate in the Supreme Court of India. He is a co-founder of VSPR Associates as well as of NIEV Judicial education. He assisted the Supreme Court in setting the law in ‘Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1’ through an intervention application  immediately after passing out of the college and argued before a five-judge bench. He has written a book titled, ‘Iudexcracy VS Democracy:  Revisiting Fourth Judges Case’. Mr Reley also assisted the Supreme Court in settling the law of Electronic Evidence Certificate enumerated under Section 65B of Indian Evidence Act.

Disclaimer: The views or opinions expressed are solely of the author.