ARTICLE 164 (1A) OF CONSTITUTION MANDATES MINIMUM 12 MINISTERS: HEMANT
CHANDIGARH, 19 MARCH: Three days after taking Oath of Office and Secrecy as Chief Minister of Punjab, Bhagwant Maan would have 10 more Ministers in his Cabinet (Council of Ministers) on Saturday 19 March which would take up the strength of Ministers in Punjab’s new AAP Government to total 11 including Chief Minister Mann.
Meanwhile, an Advocate at Punjab and Haryana High Court, Hemant Kumar, has raised an interesting but significant legal ( read constitutional) question over the strength of Bhagwant Mann’s of 11.
While quoting first proviso to Article 164(1A) of Constitution of India as inserted via Constitution (91st Amendment) Act, 2003 which came into force from 1 January 2004 and which provides that “Provided that the number of Ministers, including the Chief Minister, in a State shall not be less than twelve”.Hence, after induction of `10 Ministers in Bhagwant Mann’s Council of Ministers on Saturday, the total strength of his Ministry including him would be 11 and thus it would be one less than the constitutionally mandated strength of 12, which raises serious eyebrows.
Hemant also adds there has been no detailed judicial pronouncement by either Supreme Court on else any High Court in the country till date over if total number of Ministers in State’s Council of Ministers can be less than 12 although in the year 2008, when a Public Interest Litigation (PIL) was preferred in Supreme Court of India questioning the strength of then PK Dhuma’s led Council of Ministers in Himachal Pradesh which was 10 including CM Dhumal as being against Article 164 (1A) of Constitution of India, then there was only observation from SC Bench headed by then Chief Justice of India, KG Balakrishnan terming that there is no violation of the law if a Council of Ministers has less members than the lower limit ( i.e. 12).
However, the point is that the observation of any Constitutional Court, be it SC or any HC, can not have the same force of law alike a Judgment or detailed Order which otherwise has full reasoning coupled interpretation of Constitution or relevant Statute and which assumes a binding precedent. Hence the ambiguity or in other words, the grey over this issue i.e. if strength of a Council of Ministers in any State can be less than 12 continues till date.
Be that as it may, in the absence of any clear cut and unequivocal explanation in Article 164 (1A) coupled with the usage of the word ‘shall” therein, it nothing else but only literally implies that there shall not be less than 12 ministers including CM in any State Ministry, asserts Hemant.
The same thing happened five years ago when Cong Govt headed by Captain Amarinder Singh assumed charge. On 16 March 2017, total 10 Ministers including then CM Amarinder were sworn in. In July, 2017 Hemant filed a RTI with Punjab Raj Bhawan seeking information regarding whatever action has been taken by Governor’s office in this regard since the then strength of Punjab’s Council of Ministers was ten including CM Amarinder which was against the mandate of Article 164 (1A) of Constitution of India. Punjab Raj Bhawan transferred the RTI State Chief Secretary’s Cabinet Affairs branch which is its reply dated 31 August 2017 asserted that since RTI query does not falls within the definition of information itself under RTI Act, 2005 hence no information can be provided in this regard.