New Delhi: Even as the Aam Aadmi Party (AAP) party celebrates spreading its wings beyond Delhi, there is a possibility that the Bhagwant Mann-led government in Punjab has violated a constitutional provision by having less than 12 ministers in the cabinet.On March 16, Bhagwant Mann was appointed as chief minister of Punjab by the governor, Banwarilal Purohit, through a notification and three days later 10 cabinet ministers were appointed. This brings the total members of the cabinet to 11, one less than the number recommended by Article 164(1A) of the constitution.In the past too there have been several instances of governments with less than 12 ministers being formed and the matter had even reached the Supreme Court. However, the matter is in a legal ‘grey area’.Incidentally, the constitution was amended in 2003 to put a cap on the number of members in a council of ministers to prevent the creation of “jumbo ministries”. Article 164(1A) then provided that “the total number of ministers, including the CM, in the council of ministers in a state shall not exceed 15% of the total number of members of the legislative assembly of that state”. However, it added a proviso, stating “the number of ministers, including the chief minister, in a state shall not be less than 12”.This led to a peculiar problem, particularly with states that were not creating jumbo ministries but were rather trying to trim the size of their cabinets.In 2008, a public interest litigation was filed in the Supreme Court by one Virender Kumar who accused the Himachal Pradesh chief minister Prem Kumar Dhumal of breaching Article 164 (1A) of the constitution by having a 10-member council of ministers, including the CM.The matter was heard by a bench headed by then Chief Justice of India K.G. Balakrishnan. The petitioner submitted that successive chief ministers of the state had violated the constitutional provision on the minimum size of the council of ministers.The Bench had observed that the Constitution 91st Amendment Act, 2003, was enacted to put a limit on the huge expenditure incurred by states because of jumbo cabinets. “The intention was to reduce pressure on the state exchequer,” it said.Further, the bench, while asking the petitioner, “Why do you want to burden the state?” It added, “If it was a case that the CM was having only 2-3 ministers in his council of ministers, then there could be some merit in the case. But, in this case, the CM has the assistance of nine ministers.”Though the apex court had in May 2008 observed that there is no violation of the law if a council of ministers has fewer members than the lower limit, it had not issued an order to the effect.“This remains a grey area. There is no order of the Supreme Court which strikes down the constitutional provision that provides for having at least 12 ministers. We hope that there is soon clarity on this subject,” said Punjab and Haryana high court advocate Hemant Kumar, who has written to Mann and Purohit about a similar violation in Punjab now.In his letter, Kumar has pointed out that only a total of 11 ministers, including the chief minister, have been sworn in by the Punjab government. This includes Bhagwant Mann as chief minister, and Harpal Singh Cheema, Baljit Kaur, Harbhajan Singh, Vijay Singla, Lal Chand, Gurmeet Singh Meet Hayer, Kuldeep Singh Dhaliwal, Laljit Singh Bhullar, Bram Shanker and Harjot Singh Bains as cabinet ministers.Referring to Article 164 (1A), the advocate activist said it uses the word “shall” and not “may” and therefore it was compulsory or mandatory that the total strength of the Council of Ministers in every state (including Punjab) at any given point of time should not be less than 12.Kumar added that there has also been no authoritative judicial pronouncement or any reportable judgment which may act as a binding precedent on this matter at any given point of time.He said in the case of Punjab, the council of ministers has an upper limit of 18 ministers – which is derived by rounding up 15% of the 117, the total MLAs in the house.Kumar said, therefore, the ministry size should be increased to 12 at the earliest so that it “assumes constitutional sanctity”.