Maharashtra: A government with two ministers not constitutional, say experts

Can there be a ministry in Maharashtra with just two ministers? Legal experts have pointed out that the position is not tenable as the Constitution provides both the maximum and the minimum number of ministers each state must have. While the maximum number of ministers cannot exceed 15% of the strength of the Assembly, the minimum number of ministers prescribed for Maharashtra is 12.

While it is certain that before the Opposition takes up the issue in court, the two-men ministry will get expanded, the real issue is whether decisions taken during the last three weeks by the cabinet of two ministers can be challenged and reversed.

Constitutional expert Prof Hari Narke is of the opinion that it is unconstitutional. A former Secretary of the Maharashtra Assembly, Dr Anant Kalse, also affirms that the minimum number of ministers in the state should be 12 and that decisions taken by the two-member cabinet have no Constitutional validity.

Under Article 164 (1) (A) of the Constitution, points out Dr Kalse, it is mandatory to limit the number of ministers to 15 percent of the total number of MLAs or have at least 12 ministers in the state cabinet at any given time. He adds that the newly sworn in chief minister has 12 days after being sworn in to constitute the ministry. That window for Eknath Shinde closed on July 12.

There has however been a precedent in Maharashtra when, in 2010, Ashok Chavan and Ajit Pawar were sworn in as chief minister and deputy chief minister respectively. Chavan from the Congress and Pawar from NCP also had failed to constitute the ministry within the stipulated time. But in their case, the saving grace was that they had not apparently taken any policy decision or far-reaching decisions.

The ED Government, as Eknath Shinde-Devendra Fadnavis Government, is being called, on the other hand has reversed several decisions taken by the Uddhav Thackeray-led MVA Government including on the contentious Aarey forest area. The Government is also stopped development schemes in the constituencies of NCP, Congress and Shiv Sena MLAs still loyal to Uddhav Thackeray. Those are the decisions which are now coming under a cloud.

In all probability the failure to constitute the ministry is because of intense lobbying for important portfolios. It is no secret that Devendra Fadnavis and the BJP would like to retain the Home department. But while generally Home remains with the chief minister, Uddhav Thackeray had relinquished it in favour of the NCP. Shinde, aware of the importance of the department, is either reluctant to give up the portfolio or is busy bargaining with BJP for bigger spoils. Another consideration is to keep the rebel Shiv Sena MLAs, whose disputed membership of the Assembly is being contested in court, happy and secure.

The Home portfolio was the bone of contention between Shiv Sena and BJP even when they first formed a government in the state in 1995. While Gopinath Munde of the BJP had then staked his claim over Home over the SS chief minister Manohar Joshi, in 2010 it was Ajit Pawar of the NCP who demanded Home over Ashok Chavan of the Congress who was the chief minister.

In 2010 Chavan had dug in his heels and opposed divided loyalty among bureaucrats and police officers, which had allowed them to play the CM against the Dy CM in the past, leaving no clear chain of command during the 26/11 attack on Mumbai in 2008 by terrorists. But the NCP, which had held the Home portfolio had refused to part with it. As the deadline prescribed by the Constitution lapsed, the duo were forced to reconcile to the status quo and other ministers were swiftly sworn in.

This time round, another piquant dimension is that the decisions are said to be dictated by ‘D’ of the ED Government. With Eknath Shinde engaged in fire-fighting in keeping his flock together and in staking his claim to the offices, mouthpiece and Shiv Sainiks, it is Devendra Fadnavis who has emerged as the de facto chief minister and a one-man Government. With Shinde fixated on the next election, which will be an acid test for him, Fadnavis by all accounts is having a field day.

That has not, however, prevented Shinde from joining hands with Fadnavis in going after the NCP, perceived by them as their main rival in the state. Development schemes worth Rs 941 crore are said to have been stalled in Baramati, the Pawars’ backyard. Fadnavis especially has reasons to be sore with the Pawars because of his short-lived Government after the last election forged with support from Ajit Pawar. But the latter soon ditched Fadnavis and scurried back to the NCP with his supporters, leading the BJP government to fall.

So it is now clearly payback time.

(This was first published in National Herald on Sunday)