Background
In what may be diligently called as a political coup d’état , 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 his becoming the Chief Minister, the nationwide lockdown was imposed and coronavirus cases in the State 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 Ministers 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 promulgated two Ordinances, namely, the Madhya Pradesh Finance Ordinance, 2020 and the Madhya Pradesh (Vote on Account) Ordinance, 2020 on the aid and advice of the Chief Minister[1]. These two Ordinances currently work as the Finance Bill for the State.
Satisfaction of the Governor
It is trite that, under Article 213 of the Indian Constitution[2] when the Governor is satisfied that such circumstances exist which renders him to take immediate action in the absence of legislative assembly in session, he on aid and advice of the Council of Ministers headed by the Chief Minister can promulgate an Ordinance.
In Samsher Singh v. State of Punjab[3], the Supreme Court affirmed that wherever for the exercise of any power or function, the Constitution calls for the satisfaction of the President or 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 exercises all his powers and functions.
Therefore when the Governor is under Article 213 promulgating an Ordinance, his satisfaction that necessary circumstances 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, it can be enacted in the form of an Ordinance, thus promulgation of the Finance Bill in a way of the 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 the Council of Ministers, who can advise the Governor to promulgate any Ordinance?
Analysis
According to Article 163(1)[4], there shall be a ‘Council of Ministers with the Chief Minister at 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 functions or any of them in his discretion’. Additionally, Article 164(1-A)[5] states that the total number of Ministers including the Chief Minister in the Council of Ministers in a 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[6] Legislative Assembly, where the Supreme Court commented that the “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”. With the Court emphasising 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 the Ordinance and then send it to the Governor for his/her approval.
In another judgment of Pancham Chand v. State of H.P.[7], 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 the Chief Minister with no cabinet in place, cannot go to an extent to advise the Governor to issue an Ordinance.
Even if for the sake of argument only, it is assumed that the Chief Minister can act on behalf of the Council of Ministers to advise the Governor and the above stated arguments are rejected. This 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 minister concerned, even in his presence. This can create dissatisfaction in the government motivating the minister concerned to even disagree to implement the Ordinance, especially when the coalition government is running the State. Hence, the constitutional provisions themselves does not make it valid for such Ordinances to be passed merely on the advice of the Chief Minister irrespective of the presence or absence of the Council of Ministers.
Conclusion
Conclusively, when Article 213 of the Constitution empowers the Governor to promulgate an Ordinance, based on his satisfaction which will be founded on the aid and advice of the Council of Ministers headed by the Chief Minister. The Chief Minister will also have 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 the Ordinance. The presence of the Council of Ministers is not only compulsory but a constitutional obligation.
Thus, in the present factual matrix where the Ordinance is enacted by the Governor on sole advice of the Chief Minister of Madhya Pradesh can be legally held void because of the violation of the fundamental principle of Articles 213 and 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 COVID-19 pandemic, and affirms the discretionary power of the Governor to issue an Ordinance under Article 163(2) read with Article 213, it will be a very wide interpretation of the provisions and to an extent an unreasonable interpretation of the otherwise unequivocal language of the provisions and will set, in the 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 consummating the fundamental obligation under the Constitution.
*Third & Second Year students respectively, Institute of Law Nirma University, Ahmedabad
[1] The Times of India, Sibal, Tankha object to financial Ordinances, urge Prez to withdraw, (April 21, 2020, 04:37 IST) https://timesofindia.indiatimes.com/city/bhopal/sibal-tankha-object-to-financial-ordinances-urge-prez-to-withdraw/articleshow/75259418.cms.
[2] Article 213.
[3] Samsher Singh v. State of Punjab, (1974) 2 SCC 831.
[4] Article 163(1).
[5] Article 164(1-A).
[6] Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1.
[7] Pancham Chand v. State of H.P., (2008) 7 SCC 117
