By: Aniesh Jadhav
To continue as CM, as per Article 164 (4), Thackeray must become a member of the State Legislature before expiry of six months. This six month period expires on May 28, 2020.
The MLC elections scheduled in March were forced to be postponed indefinitely on account of the COVID-19 pandemic. On April 9, the Council of Ministers decided that Thackeray be nominated by the Governor as an MLC in terms of Article 171 (3) (e).
Article 173 (1) (e) allows the Governor to nominate 12 members to the Legislative Council in Maharashtra from persons having special knowledge or practical experience in literature, science, art, co-operative movement and social service. There are myriad instances of persons from purely political backgrounds nominated as MLCs using this route. The Governor is bound by and expected to act according to the advice of the Council of Ministers for such exercise and it is not a matter left purely to the Governor’s discretion.
However, the Governor Bhagat Singh Koshyari has been conspicuous by his inaction in this regard, and on April 27, the State Cabinet was forced to remind the Governor again to nominate the Chief Minister to the Council. On Wednesday, the Chief Minister stepped up the pressure and phoned the Prime Minister to apprise him of the impending political instability.
Uddhav Thackeray shall ‘cease to be a Minister’ under Article 164 (4) of the Constitution if he does not meet the May 28 deadline. It could follow that the he cannot be reappointed as Minister during the life of the present legislature.
Analysts are mistaken in suggesting that this hurdle can be bypassed if he could resign and be re-appointed so that the 6 month period could start again. On the contrary, the Supreme Court has held that resignation and reappointment in such cases would be an abuse of constitutional provisions. In 2001, the Supreme Court nullified a similar attempt by Tej Parkash Singh in Punjab. Singh, a Congress leader resigned at the end of the six month period and re-took oath immediately afterwards. These actions were nullified by the Supreme Court, wich termed this modus operandi as a subversion of the Constitution. The Court has held that the privilege to continue as Minister for six months without being an elected member is a one time deal. If resignation and reappointment were permitted, Thackeray could continue to be a Minister without being duly elected, by repeated appointments, each time for a period for six months. This would be wholly unacceptable and contrary to basic principles of democracy.
There is no precedent where the Courts have issued directions against the Governor 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 directions for even filing an affidavit can be issued to the Governor. However, the Courts can exercise their power of judicial review against an action of the Governor in his absence. The case in hand, however, 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 Pandemic with Maharashtra leading with the number of cases in the country. As it stands, if the Governor refuses to nominate him to the Legislative Council before May 28, Uddhav Thackeray will cease to be the Chief Minister. These trying times should not be seen as opportunities to settle political scores. While there maybe more to the Governor’s lack of urgency than meets the eye, one can only hope that this contrived constitutional crisis is resolved soon. More so when there is a public health crisis knocking at the door.
The author is an Advocate practising at the Bombay High Court.
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