Face2News/Chandigarh

Four weeks after taking Oath of Office and Secrecy as Chief Minister(CM) of Himachal Pradesh, Sukhvinder Singh Sukhu of Congress expanded his Council of Ministers (a.k.a. Cabinet) on Jan 8, 2023 with the induction of 7 new Ministers viz. Dhani Ram Shandil, Chander Kumar, Harshwardhan Chauhan, Jagat Singh Negi, Vikramaditya Singh, Anirudh Singh and Rohit Thakur.

Earlier last month on Dec 11, 2022, Mukesh Agnihotri had also taken Oath as Deputy Chief Minister cum Minister along with CM Sukhu. Thus, the total number of Ministers in Himachal Pradesh's current Sukhu led Council of Ministers has now been raised to nine.

Meanwhile, an Advocate at Punjab and Haryana High Court, Hemant Kumar while quoting Article 164 (1)(A) of Constitution of India asserts that it mentions that the total number of MInisters, including the CM, in the Council of Ministers in a State shall not exceed fifteen (15) percent of the total number of members of the Legislative Assembly of the State.

Although in case of Himachal Pradesh, 15 percent of 68, i.e. the strength of State Legislative Assembly, comes out to be 10.2 or 11 however as per First Proviso to Article 164 (1)(A) of Constitution of India, the number of Ministers including the CM in a State shall not be less than twelve (12)

CPS are being appointed in the State of Himachal Pradesh under this very Act. In fact, Virbhadra Singh also appointed nine MLAs as CPS during his tenure as CM between 2012-17. However, neither PK Dhumal ( 2007-12) nor Jai Ram Thakur led both BJP dispensations in Himachal Pradesh appointed any CPS during their entire tenures during the past 15 years. However, the moot but significant point is that both above BJP Govts in the State also did not got HP Parliamentary Secretaries Appointment etc. Act, 2006 repealed via State Assembly although both commanded absolute majority during respective Houses, asserts Hemant Kumar.

Pertinent that the since the aforementioned First Provision to Article 164 (IA) uses the word "shall" and not "may" hence it seems that its compulsory/mandatory that the total strength of Council of Ministers in every State (including Himachal) at any given point of time shall (should) not be less than twelve.

However, Hemant recalls an interesting anecdote of May, 2008 when the then PK Dhumal Ministry led BJP Government in Himachal was having only 10 Ministers including CM Dhumal itself, then Supreme Court of India was moved in the matter over this legal point that it falls short of the constitutionally mandated number of twelve. However, then Chief Justice of India Justice KG Balakrishnan (since retired) headed Bench made an (oral) observation that there is no violation of the law if Council of Ministers in a State has less members than the lower limit (i.e. 12)

However, it must be noted that till date there has been no authoritative judicial pronouncement (read any Reportable Judgment which acts as a binding precedent) by any Constitutional Court in India i.e. either by Hon'ble Supreme Court of India or else any High Court(s) in India on this very point i.e. if total strength of Council of Ministers in a State can be less than 12 at any given point of time.

Meanwhile, as far as regard the appointment of 6 Chief Parliamentary Secretaries (CPS) by Himachal Pradesh CM Sukhu, Hemant asserts that in Aug, 2005, a Division Bench of Himachal Pradesh High Court quashed the appointment of then Virbadhra Singh led Cong Govt appointed total 12 Chief Parliamentary Secretaries- CPS and Parliamentary Secretaries - PS which included current incumbent Dy Chief Minister Mukesh Agnihotri as well as two newly appointed Ministers Harsh Wardhan Chauhan and Jagat Singh Negi, by terming theirs then appointment as CPS/PS illegal and unconstitutional and that HC ruling has till date not been overturned/reversed by the Supreme Court. Hence, it very much remains the law of the land (binding precedent) in Himachal Pradesh even today.

However after the aforementioned HC verdict, in Jan, 2007 i.e. during then Virbhadra Singh led Cong Govt. itself, a law was enacted via the State Assembly titled Himachal Pradesh Parliamentary Secretaries (Appointment, Salaries, Allowances, Powers, Privileges and Amenities) Act, 2006 which however till date has not been adjudicated judicially either by HP High Court or else by the Supreme Court.

Hence CPS are being appointed in the State of Himachal Pradesh under this very Act. In fact, Virbhadra Singh also appointed nine MLAs as CPS during his tenure as CM between 2012-17. However, neither PK Dhumal ( 2007-12) nor Jai Ram Thakur led both BJP dispensations in Himachal Pradesh appointed any CPS during their entire tenures during the past 15 years. However, the moot but significant point is that both above BJP Govts in the State also did not got HP Parliamentary Secretaries Appointment etc. Act, 2006 repealed via State Assembly although both commanded absolute majority during respective Houses, asserts Hemant Kumar.