Senior Advocates Vivek Tankha (L) and Kapil Sibal (R)
Senior Advocates Vivek Tankha (L) and Kapil Sibal (R)

[COVID-19] "Matter of Constitutional Shame": Kapil Sibal, Vivek Tankha write to President over absence of Cabinet Govt in Madhya Pradesh

Bar & Bench

Senior Advocates Kapil Sibal and Vivek Tankha had written to the President of India, Ram Nath Kovind, registering concern over the "one-man government" in Madhya Pradesh amid the battle against COVID-19.

"Indore today is the epicentre of the spread of the virus hosting 80% of Coronavirus infections. Bhopal earlier witnessed the collapse of the health department with the hierarchy of its minsters infected. In the absence of a Health Minister, the infected personnel continued to discharge their duties. Today the department in Bhopal is completely dysfunctional", states the letter signed by Sibal and Tankha. They add that,

"To halt the spread of the virus we need to test test and test. That is not happening because of the collapse of the administrative structure of the health department. We do not wish to indulge in a blame game. That benefits no one. But we need to attend to the prevailing administrative shortcomings to ensure the safety of our people."
states the letter.

The two senior lawyers further raise concerns over the legality of two recent ordinances signed off by the Madhya Pradesh Governor, acting only on the advice of Chief Minister Shivraj Singh Chouhan i.e. the Madhya Pradesh Finance Ordinance, 2020 and the Madhya Pradesh Appropriation (Vote on Account) Ordinance, 2020.

The letter states that the two ordinances authorise the State Government to burden the State with an additional loan of Rs 4,443 crores. Further, that it also allows for the withdrawal of over Rs 1 lakhs, 66 crores from the Consolidated fund of the State for the Financial Year 2020-21.

Highlighting that Article 163 of Constituon mandates that the Council of Ministers advise the Governor in such matters, the letter registers objection to the passage of the two ordinances as a "decision to undertake transactions involving huge sums of money, without a cabinet in political harakiri."

The letter adds,

“This not only has grave fiscal implications on the fiscal health of the State but gives an unconstitutional act the colour of legality. In Madhya Pradesh, Constitutional democracy has been reduced to a farce.”
Letter by senior lawyers Sibal and Tankha

Shivraj Singh Chouhan had taken the helm of Madhya Pradesh as its Chief Minister in March 23 this year, following the collapse of the INC Government led by Kamal Nath. However, as on date the State does not have a Cabinet or a Health Minister to aid the Chief Minister in governance.

While pointing out that there is no legal impediment to constitute a cabinet for Madhya Pradesh, the letter by Sibal and Tankha states that the "whim and fancy of a one-man non-government, unknown to law, cannot be the basis of taking recourse to Article 213 of the Constitution, the Ordinance making power ... It is only in extraordinary circumstances that it is permissible to adopt the Ordinance making power route in fiscal matters and allow for Vote-on-Account.”

“It is a matter of constitutional shame that Madhya Pradesh holds the dubious record of a Chief Minister functioning without a government. That too for the longest period in our constitutional history."
the letter further states.

It is added that while a Task Force comprising of senior BJP leaders has been constituted, ostensibly to advice the State Government in tackling the COVID-19 pandemic, "this Task Force has no sanctity in law."

"(The Task Force) cannot be held accountable, yet controls the functioning of the one-man non government show; the death knell of democracy. The brazen exercise of such undemocratic decision-making cannot be countenanced."

letter by senior lawyers Sibal and Tankha

In this backdrop, the two senior lawyers have now urged that the President intervene so that:

  • A Council of Ministers is constituted;

  • The Vote-on-Account is considered and passed by following settled constitutional procedures;

  • The unconstitutional ordinances passed in Madhya Pradesh are withdrawn.

In the alternative, the President has been requested to call for a report from the Governor of Madhya Pradesh and impose the President’s rule in Madhya Pradeshm if necessary, "because of the complete breakdown of its Constitutional machinery.

Earlier, Tankha had made another similar representation to the President on the issue, asserting that without a Health Minister or a Cabinet in place, the COVID-19 situation is spiralling out of control in Madhya Pradesh.

Read the Letter:

Letter to President - Madhya Pradesh- Kapil Sibal and Vivek Tankha.pdf

The resignation of 22 INC MLAs earlier this year had led present Chief Minister Shivraj Singh Chouhan and nine other BJP MLAs to move the Supreme Court asserting that former Chief Minister Kamal Nath no longer held the majority to rule the State.

A March 19 directive from the Supreme Court for the conduct of a floor test the following day led to the resignation of Kamal Nath before the test. Subsequently, Chouhan was sworn in as the new Chief Minister of Madhya Pradesh on March 23.

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