india

Updated: Apr 30, 2020 17:51 IST

As uncertainty surrounds chief minister Uddhav Thackeray’s nomination to the legislative council and Maharashtra stares at a constitutional crisis, experts differ on whether governor Bhagat Singh Koshyari is duty-bound to nominate Thackeray to the House from his quota, as recommended by the state cabinet.

Thackeray has to get elected to one of the two Houses of the state legislature --- legislative council or the legislative assembly --- by May 27. Since he is not a member of any of the houses, he will, according to Article 164(4) of the Constitution, lose his post unless is he elected within six months from the date of taking oath (November 28).

Under Article 171 of the Constitution, the governor can nominate members to the legislative council from the fields of literature, science, art and social service. Social service has a wider scope and political leaders have been nominated in this category in the past. With the governor yet to take a call on the cabinet’s recommendation, Thackeray called Prime Minister Narendra Modi on Wednesday.

In the wake of the coronavirus disease (Covid-19) outbreak, the Election Commission has put on hold elections to fill vacant seats in the Rajya Sabha, and all by-elections and civic body elections --- a development that has led to the uncertainty in Maharashtra.

The ruling Shiv Sena-Congress-Nationalist Congress Party (NCP) combine has alleged that the governor is not taking swift action. Technically, Thackeray can resign and take oath again as the chief minister after getting elected the leader of the ruling combine comprising the three parties.

While a section of constitutional experts said it is the governor’s decision alone, others argued that he has to go by the recommendations of the state cabinet.

“If the governor decides that it will be his discretion under which the issue will be dealt with, then that cannot be questioned. The governor is bound to act on the advice of the council of ministers except when he chooses to address the issue under his own discretion,” constitutional expert Subhash Kashyap said.

Kashyap said the governor can also refer an issue to the President, who, in turn, can seek the advice of the Supreme Court. “The second issue is: should a nominated member be appointed a minister or the chief minister? At the Union level, no such appointments have been made in the last 70 years, but at the state level, there have been precedents in Bihar and Maharashtra. I personally feel that a nominated member being appointed a minister or the chief minister is against the spirit of democracy, though it is not illegal,” he said.

But constitutional expert and former Lok Sabha secretary general PDT Achary said the governor cannot sit on a decision on a matter such as this, and has to go by the advice or recommendation of the state cabinet.

“The governor has no other option but to accept it [the cabinet’s decision] and can, at best, seek a clarification from the government. But once the government gives its clarification, the governor cannot sit over it. I don’t know why the governor is not taking a final decision on the issue,” he said.

“In our constitutional scheme, a governor cannot act independently and has no discretion in this matter because it is an executive function. Nominating a member to the legislative council and the Rajya Sabha is basically an executive act. And a governor acts only on the advice of council of ministers,” Achary added.

The first recommendation to the governor by the state cabinet on Thackeray’s nomination was made on April 9. A delegation of leaders, led by deputy chief minister Ajit Pawar, met the governor a second time on Wednesday to reiterate its demand.

Out of the total 78 members in the Maharashtra legislative council, 12 are nominated by the governor. There are two vacancies from the governor’s quota, after Rahul Narvekar and Ramrao Wadkute resigned from the council last year. While Wadkute resigned the NCP to join the Bharatiya Janata Party (BJP), Narvekar got elected to the state assembly on a BJP ticket.

The ruling side also argues that section 151A of the Representation of the People Act (RPA), 1951 --- which some see as an impediment to Thackeray’s nomination --- does not apply in the present circumstances, especially at a time when the election commission has put all polling processes on hold.

This section mandates the election commission to fill vacancies in the Houses of Parliament and state legislatures through by-elections within six months from the date of occurrence of the vacancy, provided that the remainder of the term of a member in relation to a vacancy is one year or more. Terms of both the seats from where Thackeray can be nominated will end on June 6. The ruling side argues this section only deals with the election of member, and not his or her nomination.

Senior advocate Sanjay Hegde said the provision does not necessarily mean that the seats in question will have to remain vacant.

“The provision says elections need not be conducted if the term is less than a year, but if it is the Cabinet’s decision to fill those seats and since the governor is bound by the cabinet’s advice, there is nothing to say that the nomination would be illegal,” he said.

Achary said there is no clarity in the law as far as the term of a nominated member is concerned.

“…I would say that a governor has to act only by the aid and advice of the council of ministers, irrespective of the term of a member. That shouldn’t matter. Instead of sitting on the decision, the governor should seek clarifications from the council of ministers and take a decision,” he said.

Mumbai-based political analyst Abhay Deshpande said the governor should accept the state cabinet’s recommendation because of the extraordinary situation prevailing in the country due to the Covid-19 outbreak.

“Thackeray’s matter is different from the past cases. Thackeray is not getting a chance to get elected because the election commission has deferred the scheduled polls in view of the prevailing situation. If elections are not held, you are denying him a chance to get elected. Had elections been held on time, the chances of his elections were very good. So, you can’t compare apples with oranges,” he said.