CM Uddhav has nothing to worry, Constitutional provisions are on his side
As Uddhav Thackeray’s deadline to become member of the Maharashtra assembly draws close, Governor Koshyari is delaying his nomination to the legislative council. Many reports suggest the Shiv Sena chief’s position is constitutionally fraught. However, here are the reasons why the Thackeray scion may have nothing to worry about.
COVID-19 cases in India have nearly touched the 25,000 mark and Maharashtra tops the list. The state has recorded roughly 28 percent of the total positive cases reported across the country. It also tops the list of deaths from the pandemic. Even as the Maha Vikas Aghadi (MVA) government has been on its toes tackling the virus, Chief Minister Uddhav Thackeray and the Shiv Sena (SS) are, in the middle of this, facing a peculiar constitutional crisis.
The crisis could cost CM Thackeray his office. The Shiv Sena chief took charge as Chief Minister on November 28, 2019. However, he is yet to become a member of Maharashtra assembly. As per the constitutional requirements, he has to become a member of the House by May 28, or else have to step down. If the latter happens, it will be a big jolt to the Shiv Sena. Uddhav Thackeray is the first member of the Thackeray family to assume office in the government.
Media reports suggest that CM Thackeray is facing a deep crisis. If Governor Bhagat Singh Koshyari chooses to ignore the Maharashtra cabinet’s request, the Shiv Sena chief will have no option but to give up the Chief Minister’s post.
However, constitutional experts like P.D.T. Achary have an entirely different opinion on the matter. Achary believes that Thackeray has nothing to worry about as the Constitutional provisions in this case are clearly on his side.
Here is all that you need to know about the hurdles ahead of Thackeray and the reasons he shouldn’t be worried about them.
What threatens Thackeray’s tenure as the Maharashtra Chief Minister?
As per Article 164 (4) of the Constitution, every minister in the government needs to become a member of the House within six months of assuming the office. If he or she fails to do so, then at the end of six months, the person will have to resign from the office.
Uddhav Thackeray had not contested the 2019 state assembly election. Hence, he is not an elected member of the Maharashtra legislative assembly. He is not even a member of the Maharashtra upper house, that is, the legislative council.
In a dramatic turn of events, after toppling the short-lived Devendra Fadvanis government, the Shiv Sena, Congress and Nationalist Congress Party (NCP) forged an alliance in the state and the Shiv Sena chief took the oath of office on November 28. As per the constitutional requirement, he needs to become a member of either the Vidhan Sabha or the Vidhan Parishad by May 28. Failing which, he has to resign.
There are precedents in the past where a sitting Chief Minister has had to step down having failed to become a member of the state assembly within six months. In 2009, after losing the Tamar by-poll, Jharkhand Mukti Morcha’s Shibu Soren had to resign as Chief Minister.
In Thackeray’s case, the election for the legislative council seats was scheduled for March 2020. However, it was deferred by the Election Commission of India (ECI) in wake of the COVID-19 outbreak. The biennial election to the nine legislative council seats - set to fall vacant on April 24 - has also been deferred.
Can Thackeray be nominated to the Maharashtra legislative council?
In order to avoid the crisis, the MVA decided to ensure Thackeray’s entry into the House by nominating him to the legislative council. On April 9, the Maharashtra cabinet recommended his name to Governor Bhagat Singh Koshyari for nomination to the state council.
However, Governor Koshiyari has been sitting on the recommendation since then, triggering unnecessary suspense in Maharashtra politics.
Article 171 of the Constitution mandates the Governor to nominate individuals who have contributed to the field of literature, art, science, cooperative movements and social services to the Legislative Council.
But Thackeray doesn’t really have a track record in any of these fields. So can his nomination to the council be legally challenged?
Constitutional expert P.D.T. Achary suggests that the definition of social service is wide enough to accommodate the political requirement. “So many politicians have been nominated to the Rajya Sabha under this category. Social service is a very wide term. Public service and politics is certainly part of the social service,” Achary, former secretary-general of the Lok Sabha, told Asiaville.
He further added, “Uddhav Thackeray eminently deserves to be nominated under this category”.
Can Governor Koshyari refuse to act upon the recommendation of the Maharashtra cabinet to nominate CM Thackeray to the Legislative Council?
As far as nominations of the Legislative Councils are concerned the governor has to act as per the recommendation of the state cabinet.
Achary said that the Constitution is very clear and there are numerous judgments of the Supreme Court relating to the powers of the Governor and his role in the state. “The governor has to act as per the aid and advice of the council of ministers. That means when a proposal goes from the council of the ministers, the Governor has to accept it,” he said.
However, the Governor may seek clarification from the government on any reservations he May have.
What is Section 151 (A) of Representation of People’s Act (RPA) and will it create trouble for the Shiv Sena chief?
Several media reports have referred to section 151 (A) of the RPA 1951 as one of the potential threats to Thackeray’s nomination to the legislative council.
Section 151 (A) mandates the by-polls cannot be held if “the remainder of the term of a member in relation to a vacancy is less than one year”. The term of the two seats lying vacant in the legislative council ends on June 6th.
Achary says that this section is irrelevant in the case of Uddhav Thakeray, because he is supposed to be nominated and not elected to the House.
Meanwhile, the Shiv Sena has begun to mount pressure on the Governor’s office regarding Thackeray’s nomination and has also pointed towards Koshyari’s past affiliation with the Bharatiya Janata Party. The BJP, on the other hand, is asking the incumbent MVA to pressurise the governor.
If things go haywire and Thackeray fails to get nominated to the legislative council by May 28, he will have to resign from the Chief Minister’s office. However, he could again take a fresh oath of office and continue to serve as Chief Minister of Maharashtra. But the 2001 verdict of the Supreme Court pertaining to a Punjab Minister’s case goes against such practice.
Archary, however, believes that such a situation will not arise in Maharashtra. “The governor is conscious of his duties and responsibilities. Therefore, the Governor will act as per the aid and advice of the council of ministers. I am confident, Mr Uddhav Thackeray will be nominated to the legislative council and continue to serve as the chief minister,” he predicted.