Thackeray on tenterhooks

Maharashtra has a bicameral system. The Legislative Assembly of Maharashtra has 288 seats. According to the Article 171(1) of the Constitution of India, the maximum strength of the Legislative Council is fixed at one-third of the total strength of the Assembly and the minimum strength is fixed at 40. The Parliament of India has fixed the strength of the Legislative Council of the State to be 78. For these 78 seats, 66 members are indirectly elected and 12 are nominated by the Governor from among persons who have a special knowledge or practical experience of literature, art, science, cooperative movement and social service. The current COVID-19 pandemic continues to spread its ugly tentacles beyond imagination. It has even put Maharashtra Chief Minister Uddhav Thackeray in a tough spot and is making him run from pillar to post to save his coveted position. Thackeray was appointed as the Chief Minister by the Governor on 28th of November, 2019 as the head of the Maha Vikas Aghadi Alliance that comprises Shiv Sena, Nationalist Congress Party and the Congress. At the time of his appointment, he was neither the member of the Legislative Assembly nor of the Legislative Council. Article 164(4) of the Constitution of India says a Minister who for any period of six consecutive months is not a member of the legislatures of the State shall, at the expiration of that period, cease to be a Minister. The six-month period of Thackeray is getting over on May 27, 2020. As a result, there arises a situation where he immediately needs to become a member of one of the Houses to continue to serve as the Chief Minister of Maharashtra. Owing to the strict imposition of the countrywide lockdown, conducting a bye-election, whose provisions are incorporated under Section 151A of the Representation of the People Act, 1951, for Legislative Assembly and legislative council of Maharashtra is not possible now. Thus Thackeray is left with only option of getting himself nominated by the Governor as the member of the Legislative Council before the six-month period expires. Currently, there are two vacancies in the seats reserved for nomination by the Governor in the Legislative Council. The term of the nominated members expires on June 6, 2020. Thackeray is bent upon to get himself nominated in one of these two vacant seats for the remainder of term of the nominated members that is till June 6,2020. Thackeray has already sought for his nomination to the Governor on April 10, 2020. The Governor of Maharashtra has put Thackarey’s nomination to the Legislative Council in the cold storage. Also, the Section 12 of The Representation of the People Act, 1951 says that the Election Commission would notify about the biennial elections three months prior to the term of office of the retiring members is due to expire so that retiring members’ seats can be filled up before the term of the retiring members expires. Under this provision, elections and nominations of vacancies due in the month of June should be held before the month of June. Now if the Governor nominates Thackeray and also the elections and nominations for vacancies due in the month of June are conducted and accepted before June , Thackeray can remain as Chief Minister till 6th of June, 2020 as the nominated member and later by the virtue of being elected or nominated for six years that is from June, 2020 to June, 2026, he can continue to remain as Chief Minister till the remaining period of the Legislative Assembly. According to Article 163(2), which says that the Governor can act in his discretion only on matters which is specifically mentioned in the Constitution of India for all other matters he is bound by the advice of the council of ministers. In Biman Chandra Bose vs DR H.C. Mukherjee 1952, the Calcutta High Court held that for nominating members in the Legislative Council, Governor cannot use its discretion power and is bound by the advice of the Council of Ministers as it is deemed as executive power of the Governor.

Saurav Goyal,

Guwahati