The last few months have seen engaging developments in the state of Madhya Pradesh on both, political, as well as legal fronts.

The first leg of the adventure saw the en masse resignation of MLAs from the Indian National Congress (the then ruling party), following which relentless efforts were made to save the government. Those who witnessed the entire scenario unfold wouldn’t disagree that some of the most unconventional approaches were employed to form the new government.

From there, the way forward would have been the swearing-in of the Chief Minister, followed by the appointment of his Council of Ministers. However, only the Chief Minister took oath and began his routine governance of the state.

It is a well-known fact that for its yearly expenditure, the Madhya Pradesh government withdraws money from the Consolidated Fund of the state by way of introducing an Appropriation Bill (popularly known as the Finance Budget) and getting it passed in the legislative assembly.

However, in the present case, by the time the political scenario could return to normal and the legislative assembly could convene for passing the Appropriation Bill (Finance Budget), the country came to a standstill with the COVID-19 outbreak and the subsequent lockdown.

Moreover, with no Appropriation Bill passed and without a Council of Ministers in place, the question that arose was how would the state manage without a budget? An ideal path would have been the appointment of the Council of Ministers, which would aid and advise the Governor to either call for a special session or go through the Ordinance route.

But a strange reluctance was shown in the appointment of the Council of Ministers.

With no Council of Ministers in place, the Governor of Madhya Pradesh, in exercise of his power under Article 213 of the Constitution, promulgated two Ordinances. These were the Madhya Pradesh Finance Ordinance, 2020 and the Madhya Pradesh Appropriation (Vote on Account) Ordinance, 2020.

By way of the second Ordinance, the Governor, in the absence of the Council of Ministers, effectively passed the whole budget for the state of Madhya Pradesh by releasing a huge sum of Rs. 1.67 lakh crore from the Consolidated Fund of the state.

Article 213, falling under Chapter IV, provides that when the House is not in session and the Governor is “satisfied” that circumstances render it necessary to take immediate action, he may promulgate Ordinances.

Hence, the fundamental question which arises for consideration is “In the absence of the Council of Ministers or without their aid and advice, whether the Governor can arrive at his own satisfaction and exercise power under Article 213 of the Constitution to promulgate ordinances?

On a reading of constitutional provisions and supporting precedents, the answer to this question is in the negative.

Satisfaction of the Governor

Article 163 (1) states that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in exercise of his functions, except, where the Governor is required to act in his discretion. Clause (2) provides that the validity of any decision taken by the Governor at his discretion shall not be called in question on the ground that he ought or ought not to have used his discretion.

Therefore, it becomes relevant to determine whether the word “satisfied”, as provided under Article 213, is to be construed as personal satisfaction of the Governor and whether it a matter of the Governor’s own discretion covered under Article 163(1) to dispense with the aid and advice of the Council of Ministers and act according to his discretion.

It would be relevant to mention that apart from Article 213, there are several other articles under the Constitution where explicit powers have been granted to the Governor to perform certain functions.

However, such provisions of the Constitution have been read in a manner to suggest that in a cabinet form of government, the Governor must act in accordance with the aid and advice of the Council of Ministers and must maintain harmony with the advice rendered while exercising his discretion.

In a unanimous verdict passed by a seven-judge Bench of the Supreme Court in Shamsher Singh v. State of Punjab, the contours of "satisfaction of the Governor" were explained in the following words:

“…Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions.”

Thereafter, with regard to "discretion of the Governor" as stated under Article 163, the Bench observed that

“….In this context Article 163(2) is explicable that the decision of the Governor in his discretion shall be final and the validity shall not be called in question. The action taken by the President on such a report is a different matter. The President acts on the advice of his Council of Ministers. In all other matters where the Governor acts in his discretion he will act in harmony with his Council of Ministers. The Constitution does not aim at providing a parallel administration within the State by allowing the Governor to go against the advice of the Council of Ministers."

The Court summed up the position of law as:

“For the foregoing reasons we hold that the President as well as the Governor acts on the aid and advice of the Council of Ministers in executive action and is not required by the Constitution to act personally without the aid and advice of the Council of Ministers or against the aid and advice of the Council of Ministers. Where the Governor has any discretion the Governor acts on his own judgment. The Governor exercises his discretion in harmony with his Council of Ministers.”

In a recent judgment delivered by a five-judge Constitution Bench in Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly, the Court conducted an analysis of the powers of Governor under the Constitution and in what circumstances he may exercise his discretion. The Court held,

“...the same is limited to situations, wherein a constitutional provision expressly so provides that the Governor should act in his own discretion. Additionally, a Governor can exercise his functions in his own discretion, in situations where an interpretation of the constitutional provision concerned, could not be construed otherwise.

We, therefore, hereby reject the contention advanced on behalf of the respondents, that the Governor has the freedom to determine when and in which situation, he should take a decision in his own discretion, without the aid and advice of the Chief Minister and his Council of Ministers.

We accordingly, also turn down the contention, that whenever the Governor in the discharge of his functions, takes a decision in his own discretion, the same would be final and binding, and beyond the purview of judicial review. We are of the view that finality expressed in Article 163(2) would apply to functions exercised by the Governor in his own discretion, as are permissible within the framework of Article 163(1)...”

Upon perusal of the aforesaid observations, the question arises as to whether Article 213 allows the Governor to exercise his power without the aid and advice of the Council of Ministers.

In Nabam Rebia, referring categorically to Article 213, the Court observed that

“…The only exception to the non-participation of the Governor in legislative functions, is postulated under Article 213 (contained in Part VI Chapter IV of the Constitution), which apparently vests with the Governor, some legislative power. The Governor under Article 213 can promulgate ordinances, during the period when the House(s) of the State Legislature, is/are not in session. This function is exercised by the Governor, undisputedly, on the aid and advice of the Council of Ministers with the Chief Minister as the head.”

A composite reading of the interpretation of the Supreme Court in Shamsher Singh and Nabam Rebia leaves no room of doubt that the satisfaction under Article 213 has to be arrived at, undisputedly, with the aid and advice of the Council of Ministers.

Further, the power under Article 213 does not qualify as discretionary power of the Governor as envisaged under Article 163(1) of the Constitution.

For the sake of argument, if it is assumed that the action of the Governor is permitted under the aegis of “exercise of discretionary power”, the dictum of the Supreme Court in Shamsher Singh’s case demands that for administration within the state, the Governor must exercise his discretion in harmony with the aid and advice of the Council of Ministers.

And, for rendering the aid and advice, the Council of Ministers has to exist in the very first place, which is the most crucial factor missing in the present case.

Therefore, insofar as promulgation of an Ordinance, especially for a Bill as important as the Appropriation Bill is concerned, it is clear that the Government of Madhya Pradesh could not have short-circuited the constitutional route of aiding and advising the Governor before doing so.

As for rendering the aid and advice, the Chief Minister had the constitutional obligation to appoint his Council of Ministers.

The perils of accepting the present position would lead to a disastrous precedent where even something as intrinsic as the Finance Budget would be re-routed through the Governor’s House without fulfilling the fundamental requirement under our Constitution.

The reliance upon Article 213 as the very foundation to promulgate the aforesaid Ordinances is patently unconstitutional, since the Governor, in the absence of the Council of Ministers, could not have gone ahead by passing the entire Finance budget for the state.

The author is an advocate practicing before the Supreme Court of India. He can be reached at ashish@vsalegal.in.