About five months ago, on November 28, Uddhav Thackeray was sworn in as the Chief Minister of Maharashtra without being elected to either the legislative assembly or legislative council.
Article 164(4) of the Indian Constitution requires that any person appointed as Prime Minister, chief minister or minister be elected to either houses of Parliament or legislative assembly or council within six months of any such an appointment. For Uddhav, the six month period expires on May 28.
The Election Commission on Friday said it will hold polls to the nine Maharashtra Legislative Council seats on May 21. This will give Uddhav an opportunity to become a member of the state legislature within the six-month deadline to remain chief minister. Earlier, the legislative council elections, scheduled for March, had to be postponed indefinitely on account of the Covid-19 pandemic. The question is if the elections had not been announced would Uddhav have ceased to be chief minister?
On April 9, the Council of Ministers decided that Thackeray be nominated by the governor as an MLC under Article 171 (3) (e). The Article allows the governor to nominate members to the legislative council. But under Article 171(5), the governor’s nominees “shall consist of persons having special knowledge or practical experience in the matters of literature, science, art, co-operative movement and social service”.
About five months ago, on November 28, Uddhav Thackeray was sworn in as the Chief Minister of Maharashtra. (Photo: Reuters)
But there are myriad instances of people from purely political backgrounds being nominated as MLCs using this route. The governor is bound by the Constitution - and expected - to act according to the advice of the Council of Ministers. This is not a matter left purely to a governor’s discretion.
Maharashtra governor Bhagat Singh Koshyari, however, dragged his feet on this front. The Cabinet asked Koshyari twice to nominate Thackeray to the legislative council.
Political commentators called it an attempt to settle political scores by Thackeray’s former alliance partner- the BJP.
If Uddhav would have failed to get elected by May 28, Thackeray would have ‘ceased to be a Minister’ under Article 164 (4) of the Constitution. It would have also blocked his reappointment as minister during the life of the present legislature.
Some analysts suggested that he should resign and then get himself reappointed as chief minister so that the six-month period starts again.
The Supreme Court has, however, held that resignation and reappointment in such cases would be an abuse of constitutional provisions. The SC has held that the privilege to continue as minister for six months without being an elected member is a one-time provision. If resignation and reappointment was permitted, Thackeray could continue to be a minister without being duly elected, for the entire five years. This would be unacceptable and contrary to basic principles of democracy.
Can the CM seek judicial recourse against the governor?
There are no precedents where the courts have issued directions to governors asking them to follow the advice of the council of ministers. The Supreme Court in 2006 ruled that the governor enjoys absolute immunity under Article 361 and cannot be impleaded in any court proceeding. Governors are not answerable to any court and no direction, even for filing an affidavit, can be issued to the governor.
While the courts can exercise their power of judicial review against an action of the governor in his absence, the case at hand is one of inaction on part of the governor. It would arguably be beyond the power of the courts to direct the governor to act in a certain way within a certain time.
The Supreme Court has also held that challenges against the governor have to be defended by the state government. However, the present comical circumstances have pitted the state government against the governor. It is highly unlikely that the courts can be called upon to direct the governor to nominate Thackeray to the legislative council.
Chief Minister Uddhav Thackeray is at the forefront of the fight against the Covid-19 with Maharashtra leading with the number of cases in the country. The Election Commission is a timely intervention to clear the air and ensure political stability. With a majority support in the legislative assembly, Uddhav is likely to make it through to the legislative council.
It is good news that this contrived constitutional crisis and the uncertainty over Maharashtra’s leadership will be resolved on May 21.