The appointment of 28 ministers by the Shivraj Singh Chouhan led BJP government in Madhya Pradesh has come under the scanner of the Supreme Court, which on Wednesday took note of the objections of former assembly speaker and Congress leader that this violated the ceiling on the maximum number of ministers fixed under the Constitution.
A bench of Chief Justice SA Bobde and Justices AS Bopanna and V Ramasubramanian issued notices to Chief Minister Shivraj Singh Chouhan and his government and sought their response on the plea of former assembly speaker NP Prajapati.
Senior advocates Kapil Sibal, Vivek Tankha and advocates Varun Tankha and Sumeer Sodhi appearing for Mr Prajapati said that appointment of 28 ministers in Madhya Pradesh cabinet was in clear violation of Article 164 (1A) of the Constitution.
The bench said that it is issuing notice and would hear the matter.
Under Article 164 (1A) of the Constitution the total number of ministers, including the Chief Minister in the council of ministers in a State shall not exceed fifteen per cent of the total number of members of the legislative assembly of that State.
On June 2, Chief Minister Shivraj Singh Chouhan carried out a major expansion of his cabinet, including 28 new members, a dozen of them former Congress MLAs whose rebellion contributed to the collapse of Kamal Nath led Congress government in the state.
On March 23, Shivraj Singh Chouhan sworn as chief minister of the state and on April 21, he had inducted five cabinet ministers.
Mr Prajapati said that the appointment of 28 ministers was in clear violation of Article 164 (1A) of the Constitution as per which the total strength of council of ministers including the Chief Minister cannot go beyond 15 per cent of the total number of members in the state legislative assembly.
He added that with the appointment of 28 ministers, the total strength of council of ministers including the Chief Minister is now 34.
"However, in the present case, with only 206 members at present being the members of the Madhya Pradesh Legislative Assembly, the respondents (Governor, Shivraj Singh Chouhan and MP Government) could not have appointed more than 30.9/31 members as the council of ministers," Mr Prajapati said in his plea.
Mr Prajapati, who is an MLA from Gotegaon constituency of the state, raised a legal question in his petition whether the cap of 15 per cent of the total members of the legislative assembly would be determined as per the present members of the House, or the total seats in the House?
"If the number of seats was to be the determining factor, then the maximum cap of 15 per cent would be 34.5. If the cap is read as applicable to the total number of members of the assembly, then the maximum cap of 15 per cent would be 30.9/31", the plea said.
Mr Prajapati said that it is an undisputed position that with two deaths and after the resignation of 22 MLAs from the legislative assembly, the seat of the assembly stood as 206 members and remaining 24 seats would undergo the process of fresh election.
"It is apparent that the respondents have misread and misinterpreted the dictum of Article 164 (1A) to be 15 per cent of the total seat of the assembly that is 230. Suffice it to say that the careful usage of the words shall not exceed fifteen per cent of the total number of members of the legislative assembly of the state as opposed to the total number of seats leads to the inescapable conclusion that the constitutional mandate is 15 per cent of the presently active members of the assembly in contradiction to the total number of seats", the plea said.
It said that if the present approach of the respondents is held to be valid then the whole purpose and intent of resignation/ disqualification of a member under anti-defection law would stand vitiated.
"If the present approach is to be given effect to, it would lead to a situation where despite resignation or disqualification of members, the cabinet would continue to be constituted based merely on the total number of seats in the said House, thereby remaining oblivious and unconcerned with such defections and resignations," the plea said.
It added, "Suffice it to say that the effect of such defections and resignations would then be nugatory and otiose, and the same would lead to absurdity and surely cannot be the interpretation given to the Constitutional dictum of Article 164 (1A)".
Mr Prajapati said that to the best of his knowledge, these questions have not been answered authoritatively by any constitution bench of the top court, thereby requiring the intervention of the court in the present matter.
He sought direction declaring that in the context of Article 164 (1A), the term "total number of members of the legislative assembly" would be interpreted and read as members present and sitting forming the seat of the house.
He also sought direction to Chief Minister Shivraj Singh Chouhan to bring the numerical strength of the council of ministers in conformity with the maximum cap of 15 per cent as given in Article 164 (1A) of the Constitution.