Does the cabinet of Bhagwant Mann led AAP government lack constitutional sanctity?

Hemant Kumar

Hemant Kumar

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Does the cabinet of Bhagwant Mann led AAP government lack constitutional sanctity? Yes, in terms of First Proviso to Article 164(IA) of Constitution of India. Read on…

ON 16th March the Governor of Punjab, BL Purohit appointed Bhagwant Maan as Chief Minister of Punjab. He was administered Oath of Office and Secrecy by the Governor the same day.

Three days later, on 19th March the Governor of Punjab on the advice of CM Mann appointed Harpal Singh Cheema, Dr. Baljit Kaur, Harbhajan Singh, Dr. Vijay Singla, Lal Chand, Gurmeet Singh Meet Hayer, Kuldeep Singh Dhaliwal, Laljit Singh Bhullar, Bram Shanker and Harjot Singh Bains (Total 10) as Cabinet Ministers. All 10 were administered the Oath of Office & Secrecy the same day by the Governor.

cabinet
Group photo of Punjab Cabinet with Governors of Punjab and Haryana.

On 21st March, the Governor again on the advice of CM Maan allocated respective portfolios as mentioned in State Government Business Allocation Rules, 2007 amongst all newly sworn in Cabinet Ministers including Mann who holds total 27 portfolios.

Meanwhile, on March 20 itself, I wrote to President of India, Prime Minister, Union Home Minister, Governor, CM and Chief Secretary of Punjab objecting to current strength of Mann’s Council of Ministers that is Eleven, which is one less than the Twelve, as mandated/prescribed in First Proviso to Article 164 (1A) of Constitution of India wherein it is explicitly mentioned that the number of Ministers, including the Chief Minister in a State shall not be less than twelve.

It is also noteworthy to mention here that the herein before mentioned First Proviso to Article 164 (IA) uses the word “shall” and not “may” hence it is nothing but compulsory/mandatory that the total strength of Council of Ministers in every State (including Punjab) at any given point of time shall (should) not be less than Twelve.

Also, till date there has been no authoritative judicial pronouncement (read any Reportable Judgment which acts as a binding precedent) by any Constitutional Court in India i.e. either by Hon’ble Supreme Court of India or else any High Court(s) in India including the jurisdictional Hon’ble Punjab & Haryana High Court on this very issue i.e. if total strength of Council of Ministers in a State in India can be less than 12 at any given point of time.

Further, notwithstanding the fact that the recent expansion of Punjab’s Council of Ministers on 19 March is very first and there can be more such expansion(s) in future as maximum 7 (seven) more Cabinet Ministers/Ministers of State can be appointed in Punjab’s Council of Ministers in due course which is the upper ceiling/limit in case of State of Punjab since the total number of members of Legislative Assembly of Punjab is 117 and thus maximum number of Ministers in Punjab’s Council of Ministers can be 15% of 117 i.e. 17.55 (which means 17 or if rounded off then 18) as per Article 164 (1A) of Constitution of India.

However, the significant legal (read constitutional) point is that the mandate/prescription of minimum number of Ministers in State’s Council of Ministers i.e. 12 as per First Proviso to Article 164 (IA) of Constitution of India is applicable from ab-initio (from the very beginning) of constitution/formation of Council of Ministers and it doesn’t means by any stretch of imagination that the strength of State’s Council of Ministers can be less than 12 initially and later on it can expanded to 12 or more in due course.

Hence, until and unless the strength of Punjab’s current Council of Ministers is raised from current 11 to 12, it nevertheless lacks legal (read constitutional ) sanctity in terms of First Proviso to Article 164(IA) of Constitution of India.

As a consequence thereof, there would be serious question marks over the decisions taken by such Council of Ministers/Cabinet with less than 12 Ministers including the Chief Minister as in case of Punjab currently. The first and only meeting of Punjab’s new Cabinet till date was held this past Saturday immediately after swearing in ceremony of 10 Cabinet Ministers.

Meanwhile, it has been two weeks but I am yet to get any sort of response or reply from Punjab Raj Bhawan. However, I got an email (cc copy) from the Office of Principal Secretary to CM a week back on March 21 from which it came to light that the matter has been forwarded to Secretary (PA- Political Affairs) and Superintendent (FUP) in CM Office, Punjab.

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Hemant Kumar

Hemant Kumar

The writer is an Advocate at Punjab & Haryana High Court, Chandigarh. He has been writing on issues concerning administration, governance and law especially pertaining to the Constitution.

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