Nikunj Maheshwari and Kapil Shrivastava
In what may be diligently called as a political coup de tat, the Kamal Nath government in the State of Madhya Pradesh was toppled in the early weeks of March, even before his government could present the financial budget for the State. As a result of this political fiasco, he was replaced by Mr Shivraj Singh Chauhan of the Bhartiya Janta Party, who took the oath of Chief Ministership on 23rd March 2020. He became the new Chief Minister of the State, overnight with no Council of Ministers in his cabinet. Unfortunately, in a few days of him becoming the Chief Minister, the nationwide lockdown was imposed and coronavirus cases in the State started mushrooming incessantly, leading to the termination of the budget session of the legislative assembly. As a result, the State of Madhya Pradesh had no Council of Minister and no yearly budget to manage the pandemic and its economic effects. This whole event in Madhya Pradesh unleashed new avenues of legal jurisprudence in the country.
To manage the financial affairs of the State and with no legislative session in place to pass the finance bill, the government of Madhya Pradesh took an interesting route and the Governor under Article 213 of the Indian Constitution, promulgated two ordinances namely the Madhya Pradesh Finance Ordinance, 2020 and Madhya Pradesh (vote on account) Ordinance, 2020 on the aid and advice of the Chief Minister[i]. These two ordinances currently work as the finance bill for the state.
The Satisfaction of the Governor
It is trite that, under Article 213 of the Indian Constitution[ii] when the Governor is satisfied that such circumstances exist which render him to take immediate action in absence of a legislative assembly in session, he on the aid and advice of the council of ministers headed by the chief minister can promulgate an ordinance.
In the case of Samsher Singh v. the State of Punjab,[iii] the honourable Apex Court affirmed that wherever for the exercise of any power or function, the Constitution calls for the satisfaction of the Governor, as the case may be, the satisfaction required by the Constitution is not the personal satisfaction of the Governor but is the satisfaction of the Council of Ministers on whose aid and advice the Governor will exercise all his powers and functions.
Therefore when the Governor under Article 213 promulgates an ordinance, his satisfaction, that necessary circumstances do exist must be based on the aid and advice of the Council of Ministers headed by the Chief Minister of the state under Article 163 of the Constitution.
Article 213 of the Constitution, is drafted in a manner that there is no defined contour to the nature of ordinance that can be promulgated and therefore if extraordinary circumstances demand even a finance bill, can be enacted in the form an ordinance. Thus promulgation of a finance bill as an ordinance in the unprecedented times of Covid-19 can be justified.
However, the major legal question that arises out of this event is, can the Governor act solely on the aid and advice of the Chief Minister with no Council of Ministers in the government? Or in other words can the Cabinet of Ministers having only the chief minister be called as Council of Ministers, who can advise the Governor to promulgate any ordinance?
According to Article 163(1) of the Constitution[iv], there shall be a ‘Council of Minister with the Chief Minister as the head to aid and advice the Governor in the exercise of his functions, except insofar as he is by or under this constitution required to exercise his function or any of them in his discretion’. Additionally, Article 164(1A)[v] states that the ‘number of Ministers including the Chief Minister of the State shall not be less than twelve’.
Article 163 is written in an extremely unambiguous manner, and therefore by the literal rule of interpretation, it is axiomatic that the Chief Minister is only a part of the Council of Ministers and functions as a link between the Cabinet and the Governor of the State. This view can also be interpreted from the judgement of Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative assembly,[vi] where the Supreme Court observed that “an ordinance shall only be issued by the Governor, on the aid and advice of the Council of Ministers with the chief minister as the head”. The Court emphasized on the role of the Council of Ministers itself implies that mere advice of the Chief Minister will not suffice and there must be a full-fledged cabinet to deliberate on the inevitability of an ordinance and then send it to the Governor for his/her approval.
In another judgment of Pancham Chand v. the State of H.P.,[vii] the Supreme Court went a mile ahead to comment that “…the Constitution does not envisage functioning of the government through the Chief Minister alone, it speaks of a Council of Ministers…”. This is again suggestive of the fact that a Chief Minister with no Council of Ministers in place, cannot go to an extent to advise the Governor to issue an ordinance.
Even if for the sake of argument, it is assumed that the Chief Minister can act on behalf of the Council of Ministers to advise the Governor, such an interpretation will lead to a nonplussed situation where, the ordinance is passed only on the advice of the Chief Minister with no recommendation being sought from the concerned minister, even in his presence. This can create dissatisfaction in the government motivating the concerned minister to even disagree to implement the ordinance, especially when a coalition government is running the State. Hence, the constitutional provisions themselves do not allow for such ordinances to be passed merely on the advice of Chief Minister irrespective of the presence or absence of the Council of Ministers.
Conclusively, when Article 213 of the Constitution empowers the Governor to promulgate an ordinance, based on his satisfaction the same has to be founded on the aid and advice of the Council of Ministers, headed by the Chief Minister. Under the constitutional setup, the Chief Minister has a limited role to play and even in compelling situations he/she cannot go ahead to act on behalf of the Council of Ministers and advice the Governor to enact an ordinance. The presence of the Council of Ministers is not only compulsory but also a constitutional obligation.
Thus the present factual matrix where an ordinance has been enacted by the Governor on the sole advice of the Chief Minister of Madhya Pradesh can be construed to be legally void because of the violation of the fundamental principle of Article 213 and Article 163 of the Constitution. However, if the Supreme Court or the High Court, where the validity of this ordinance is challenged takes a contrary stance justifying the ordinance in light of the COVID-19 pandemic, and affirms the discretionary power of Governor to issue an ordinance under Article 163(2) r/w Article 213, it will be a very wide and unreasonable interpretation of the otherwise unequivocal language of the provisions and will set in authors humble opinion a bad precedent where even something as vital and elementary as the Finance Budget will be re-routed by way of an ordinance without discharging the fundamental obligation under our Constitution.
[i] The Times Of India, Sibal, Tankha object to financial ordinances, urge Prez to withdraw, (April 21, 2020, 04:37 IST, Apr 21, 2020, 04:37 IST, https://timesofindia.indiatimes.com/city/bhopal/sibal-tankha-object-to-financial-ordinances-urge-prez-to-withdraw/articleshow/75259418.cms.
[ii] India Const. art. 213.
[iii]Samsher Singh v. the State of Punjab, (1974) 2 SCC 831.
[iv] India Const. art. 163 (1).
[v] India Const. art. 164 (1A).
[vi] Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative assembly, (2016) 8 SCC 1.
[vii] Pancham Chand v. the State of H.P., (2008) 2 SCC 688.
The authors are students of Institute of Law, Nirma University
Image credits: The Hindu