Maharashtra may still be grappling with the coronavirus crisis in May, but Chief Minister Uddhav Thackeray also has a constitutional crisis to resolve by then.
Thackeray, who took oath on November 28, will have to get elected to either of the houses of the state legislature before May 24, as Article 164(4) of the Constitution stipulates. However, the Election Commission has already postponed Rajya Sabha polls, byelections and civic body elections in the wake of the pandemic.
There is also the legal issue of Thackeray having to be nominated to the Legislative Council on one of its two vacancies. According to Section 151A of Representation of the People Act 1951, election or nomination to the post cannot be done if “the remainder of the term of a member in relation to a vacancy is less than one year”. The terms of the two vacancies in the Legislative Council end on June 6.
Sources in the BJP — which was accused of having a role in Maharashtra Governor B K Koshiyari not approving the state cabinet’s recommendation to nominate Thackeray as MLC from the governor’s quota — said the issue was just “constitutional and not political”.
“The Maharashtra government should consult constitutional experts or legal luminaries and seek advice to resolve the crisis. Or it should approach the EC for a way out. It is not a political issue but a constitutional crisis,” said a senior BJP leader.
The Maharashtra cabinet recommended Thackeray’s name to Koshiyari for one of the vacant posts in the Upper House after the EC deferred elections indefinitely. As the decision was delayed, Shiv Sena leader Sanjay Raut, in a veiled attack on the BJP, sought to know who was stopping the Governor from approving the recommendation. “There is nothing to hide about Koshyari’s BJP affiliation. But I would like to make one thing clear, that Uddhav Thackeray is going to be CM of Maharashtra even after May 27,” Raut said.
BJP sources said the legal position was clear. The time limit for a bypoll to fill vacancies is six months from the date of occurrence of vacancy. “Provided that nothing contained in this section shall apply if — (a) the remainder of the term of a member in relation to a vacancy is less than one year; or (b) the Election Commission in consultation with the Central Government certifies that it is difficult to hold the by election within the said period,” the RP Act says.
The posts in question fell vacant after the resignation of former NCP leaders Ramrao Wadkute and Rahul Narvekar, both of whom joined the BJP in October 2019 ahead of the Assembly election. The governor nominates 12 of the Council’s 78 members and the six-year term of all the nominees ends on June 6.
While it could be argued that the Governor’s nomination is reserved for “persons having special knowledge or practical experience in respect of such matters as the following, namely: Literature, science, art, co-operative movement and social service” under the Constitution, courts cannot interfere with the Governor’s decision even when a political appointment is made.
In the past, a similar situation has arisen in other states. This may be found in a political situation in Punjab in 1995. Congress leader Tej Parkash Singh, who was then not a member of the Assembly, was appointed a minister in September 1995. In March 1996, before he could get elected within six months, the minister resigned but was subsequently appointed again as minister during the term of the same legislature.
When the appointment was challenged, the Punjab and Haryana HC dismissed the plea but the Supreme Court held that Singh’s second appointment “without getting elected in the meanwhile was improper, undemocratic, invalid and unconstitutional”. The decision, however, was only an academic exercise as it came in 2001, well after the Assembly had completed its term.
J Jayalalithaa also briefly resigned as Tamil Nadu Chief Minister in 2001 despite winning a huge mandate owing to legal troubles. As she was convicted in corruption cases, Jayalalithaa was not allowed to contest elections but was elected party leader and became CM. Before her six-month window to get elected expired, the SC ruled that her appointment was unconstitutional. Jayalalithaa resigned, appointing O Panneerselvam as CM for five months. However, after the Madras High Court acquitted her, she contested and won a by-election in 2002 and returned as CM.
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