Shivraj Chouhan’s one-man show needs constitutional clarity. Will Supreme Court step up?

For some reason, senior BJP leader Shivraj Singh Chouhan continues to run the Madhya Pradesh government all by himself. Since taking oath as the chief minister — for the fourth time – on 23 March, Chouhan hasn’t bothered to expand his council of ministers. This is strange because he and his Bharatiya Janata Party wanted former chief minister and Congress leader Kamal Nath to take an “immediate” floor test.

The change in Madhya Pradesh government happened after the World Health Organization (WHO) had already declared the coronavirus a pandemic, and the Narendra Modi government had put the entire country under a strictly-enforced lockdown.

But, almost a month later, all the ministry posts, including health, the most important in the circumstances, remain unoccupied. The ongoing coronavirus crisis notwithstanding, the politically enforced break on governance in Madhya Pradesh is a problem that may require a judicial pronouncement in the near future.

Constitutional loophole

While the Constitution is silent on the time-frame by which a chief minister in a state – or the prime minister at the Centre – has to induct other ministers into the cabinet, there are clear indications that the glaring omission could be because the framers of the Constitution didn’t anticipate such a scenario.

But, just because the wise men and women who wrote our Constitution didn’t include a provision for this in our democratic set-up, doesn’t mean that the time hasn’t come for India’s courts to lay down the law on this important aspect.

After all, how can a single person, howsoever efficient as an administrator, assume the responsibilities of an entire council of ministers? Isn’t such a one-man government a joke on the mandate of the voters of Madhya Pradesh, who had elected 230 MLAs in December 2018 so that a group of those legislators could serve them for the next five years as ministers?

So, is a one-person government unconstitutional?

The answer is no. Under the existing scheme of things, there is an upper limit on the strength of the ministry but the Constitution hasn’t laid down a time-frame within which the chief minister has to submit a list of nominees to the governor of the state for induction into the council of ministers.

Governor needs ‘council of ministers’

But, the Constitution is a living organism, which has already been amended more than a hundred times to make it more relevant and in tune with the changing times.

In the scheme of constitutional provisions, the governor has to act with the aid and advice of the council of ministers headed by the chief minister – the significant term being the ‘council of ministers’.

A one-man cabinet cannot be said to be a substitute for a council of ministers. On important matters, the council of ministers, before it tenders any advice to the governor – or the President in case of the Union government — is expected to deliberate carefully on the pros and cons of each advice before forwarding it to the governor.

Similarly, the council of ministers is also “collectively responsible” to the Legislative Assembly of the state.

Simply put, Article 164 of the Constitution imposes an implied limitation that the chief minister cannot act on his own without taking into account the will of the other council of ministers, which makes its existence in the cabinet absolutely necessary. Article 164 (1A) says a state cannot have less than 12 members in the council of ministers (or 15 per cent of the total strength of the assembly).

Which is why the Supreme Court’s 2008 ruling relaxing this criteria — deciding not to consider it illegal to have less than 12 members —certainly needs a re-look.

Options for Supreme Court

At a future date, if a case with regard to the applicability of Article 164 (1A) comes up before a bench, preferably a Constitution bench, the Supreme Court would do well to lay down some guidelines on how a ministry should be constituted after a chief minister has taken oath.

It can, for example, direct that at least half of the ministerial berths be filled within 48 hours or so of the government formation.

It would also be a welcome change if there is a mandatory time-frame for the allocation of portfolios. Else, instances like Maharashtra, where chief minister Uddhav Thackeray, who heads the Shiv Sena-NCP-Congress government, took several days to allocate berths, will continue to happen.

Delivering the annual Durga Das Memorial Lecture in 2011, then Vice President Hamid Ansari had underlined the need for a parliamentary democracy to have a government that is “Representative, Responsible, and Responsive”.

“The first implies balanced representation of all segments of the body politic; the second necessitates ministerial responsibility to the elected legislature; the third makes incumbent responsiveness at various tiers of governance…,” he had said.

In Madhya Pradesh, a one-person government is neither representative (of all regions of the state), responsible (try as much as Shivraj Chouhan can, he will never be able to single-handedly perform the work of an entire cabinet), nor responsive (one person will never be responsive to the collective needs of an entire population).

If and when the Supreme Court delves into the issue of constitutionality of a government without an entire council of ministers, the judges would do well to recall the words of the man who played the most significant role in drafting the Constitution – B.R. Ambedkar: “It is perfectly possible to pervert the Constitution without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution,” Ambedkar had warned.

The Madhya Pradesh government run by BJP’s Shivraj Chouhan is just another example that Ambedkar’s warning was correct.

The author is a senior journalist. Views are personal.

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