WILL Maharashtra Chief Minister Uddhav Thackeray be able to continue in his position after May 28? Will an impending Constitutional crisis and a political impasse in the state be averted? The unprecedented situation has thrown up complex legal and political issues that are discussed by P D T Achary, former Secretary-General of the Lok Sabha, in an interview with Paranjoy Guha Thakurta.
Note: This interview was recorded and broadcast by the Newsclick web portal before a formal request was made on Thursday, April 30 by the Governor of Maharashtra Bhagat Singh Koshyari to the Election Commission of India to conduct elections to fill the vacant positions in the state Legislative Council “at the earliest.” The Commission is scheduled to meet on Friday, May 1 to decide on the dates of the elections.
Paranjoy Guha Thakurta (PGT): We are going to discuss the likely Constitutional crisis in Maharashtra. Joining me from Faridabad is Mr P D T Achary, former Secretary-General to the 14th and the 15th Lok Sabha.
On the 28th of November, Mr Uddhav Thackeray was sworn in as Chief Minister of Maharashtra representing a three-party coalition called the Maha Vikas Aghadi comprising the Nationalist Congress Party, the Indian National Congress and the Shiv Sena. As per Article 164 (4) of the Constitution of India, a non-legislator can occupy any post in the Council of Ministers in the state, including that of the Chief Minister for a period of six months. Thereafter, he ceases to be a minister. Now, Mr Uddhav Thackeray has time till the 28th of May to either become a member of the legislative assembly or a member of the legislative council. Because of the COVID-19 crisis, elections to nine posts of MLCs that were scheduled to take place on the 26th of March were postponed indefinitely. The state cabinet of Maharashtra recommended to Governor Bhagat Singh Koshyari on the 9th of April that Mr Thackeray be nominated to the post of an MLC under a special category under Article 171 of the Constitution. This is a special category of nominees who are supposed to be experts or “have special knowledge or practical experience in respect of …literature, science, art, cooperative movement or social service.” So far the Governor has not acted. What are the problems? What are the constraints? Can you explain the legal position?
P D T Achary (PDTA): The Constitution makes a provision for nomination (of members to the legislative council) as you said. Nomination to the legislative council is similar to nomination to the Rajya Sabha. The membership of the legislative council consists of elected members as well as nominated members. In other words, a person can either be elected to the council or be nominated. At present, there are nine vacancies in the legislative council of Maharashtra, including two positions of nominated members. A nominated member and an elected member are of the same status. There is no difference in status. The only difference comes when there is an election to the post of President of India, in which instance, nominated members do not have voting rights. That is the only difference.
The Election Commission of India postponed the elections to the legislative council because of this pandemic. The Commission has the power to postpone an election under such circumstances. The only option left before for the Uddhav Thackeray government is to get him nominated to the legislative council. Under Article 164(4), only the Governor is authorized to make such a nomination. We must remember one thing here. The nomination of a member to a house is an executive function. It is done by the executive, which suggests the names. The Governor as the Constitutional head approves the name and the person is thereafter nominated after a notification is issued. This is the process.
How does the Governor take a decision? This is very interesting. Now, since this is an executive function, the Governor has to go by the advice of the council of ministers. On executive matters, the Governor being a Constitutional head has to act on the advice of the council of ministers. As per our Constitutional scheme, real power vests in the elected government and not with the Governor. That is why Constitutional experts always say that the Governor is only a Constitutional head, which means that power vests in the elected government and the Governor has to act on the advice of the council of ministers.
PGT: You have made this point very clear that the Governor cannot act on his own, that he has to go by the advice of the council of ministers. Let us take two steps back. Under Section 151(A) of the Representation of the People Act, 1951, an election to the post of an MLC cannot take place if less than one year of the person’s term is pending. Nothing has been stated about nominated members. The law pertains to elected MLCs. What we have in Maharashtra in that out of the nine positions that are vacant in the legislative council, there are two nominated MLCs who switched their political allegiance to the Bharatiya Janata Party before the assembly elections took place on the 21st of October 2019. Their terms are supposed to end on the 6th of June. The question is whether the Governor is empowered to reduce the terms of these nominated members, even if he has no option but to accept the recommendation of the cabinet of ministers. Why do I ask this question?
There is another viewpoint, a contrary viewpoint stated by one of your predecessors, former Lok Sabha Secretary General Mr Subhash Kashyap. He has said there are three options before Mr Uddhav Thackeray. He believes it is not Constitutionally proper for him to be nominated as an MLC by the Governor. Then he can resign for a day or two and get re-appointed. However, in the 1995 case of Punjab legislator Tej Parkash Singh, the Supreme Court ruled that he cannot resign for a day or two and get re-nominated. The third option, according to Mr Kashyap, is that the Governor appoints a caretaker Chief Minister. It is not clear which of these options work, especially since the terms of two nominated MLCs end on the 6th of June…
PDTA: Well, of course, that poses a problem, I must acknowledge. The period is very short. Even if Mr Uddhav Thackeray is nominated, his term will end in June. But I must say that there is nothing in the law, nothing in the Constitution, which says that after a vacancy in the nominated category is filled up, the member who is nominated will be a member only for the remaining period of the term. Nothing is said. Nothing is clear. So far as elected members are concerned, the law is very clear and that is that their terms are only for the remaining period, whether it be one year, two years or whatever. But in the case of nominated members, nothing has been said in the Constitution.
The Rajya Sabha has always been acting on the assumption that a member in the nominated category will remain in her or his post only for the remaining period of the term in case of re-nomination. Let us assume that the person’s term ends on the 6th of June. This means the nominated member will be in his position for only around a month. If, after that, the elections are still not held, what happens? You are back to square one. This is probably why the Governor is not acting. But is that a good enough reason for the Governor not to act? I believe that if the Governor has any reservations or doubts, he must get back to the cabinet and seek clarification. That is the convention. He has to act. But nothing of that sort has happened so far. Everybody in the government is in the dark.
Suppose the Governor does not nominate (Mr Thackeray as an MLC). In this case, on the 28th of May, his term as Chief Minister would end and he would have to go. As Mr Subhash Kashyap has said, it is not possible for the Chief Minister to leave his post for a day or two and then come back to it in view of the Supreme Court’s decision in Tej Parkash Singh case as well as the 2001 case of R C Choudhary versus the state of Punjab. In that case, a three-judge bench of the Supreme Court had made it very clear that if something like this is done, it will be a fraud on the Constitution and on parliamentary democracy. This option is not available. After the Chief Minister’s term ends, the coalition can elect a new leader who is sworn in as a new Chief Minister.
In our constitutional scheme of things, there is nothing called a caretaker Chief Minister. A Chief Minister is a chief minister who has all the powers and the authority under the Constitution. So when a Governor appoints a person as a chief minister, he will be heading the government.
The Election Commission can hold the election if the pandemic subsides and it thinks the time is all right to hold the elections. Mr Thackeray can then be elected to the legislative council.
Watch the full interview here:
PGT: Before I return to the issue of the role of the Governor in the entire controversy, what you are saying is that it is the discretion of the Election Commission of India in Nirvachan Sadan to decide when the elections are going to take place. The elections were supposed to take place on the 26th of March. On the 24th of March, there was a countrywide lockdown. We know that Maharashtra is one of the states that has been affected very badly by COVID-19. Everything now depends on the Election Commission of India as to when the elections are held. Am I correct?
PDTA: Well, the law says that on the expiry of the term of the members, elections will be held to fill the vacancies. But if the circumstances are such that the elections cannot be held, then the Election Commission and no one else will have to take a view on what has to be done and for how long the elections can be postponed.
PGT: Let’s talk a little bit about the role of the Governor. What we have really is unprecedented. We’ve never seen a situation like this in the country. I was reading an article written by Supreme Court advocate Santosh Paul in The Economic Times on the 29th of April. Though the Governor is a political appointee, once he holds the post of a Governor, he becomes a constitutional authority and he should act as one. He should not act as if he is the spokesperson of a party. It is all very fine to say that the Governor has no option but to accept the recommendation of the cabinet of ministers and that the nominated members are not part of some sort of “quota” that he has. Whether we like it or not, everything becomes political. On the 29th of April, Mr Uddhav Thackeray spoke to Prime Minister Narendra Modi and there are reports quoting him saying that there is an attempt to create political instability in the state.
On Monday the 27th of April, the Maharashtra cabinet sent the Governor a reminder to act on its earlier recommendation sent on the 9th of April. Then on Tuesday the 28th of April, the leaders of the Maha Vikas Aghadi coalition led by Mr Ajit Pawar met Governor Koshyari. There is a political backdrop that cannot be ignored. There was a huge political controversy after the assembly elections took place in October 2019. The pre-poll alliance of the Shiv Sena and the BJP got a majority. The Shiv Sena then broke away from the coalition. Then, on the 23rd of November, Mr Devendra Fadnavis was sworn in as Chief Minister and Mr Ajit Pawar was sworn in as Deputy Chief Minister, following a period of President’s rule. But less than four days later, they had to resign before the floor test took place and subsequently, Mr Uddhav Thackeray was sworn in as Chief Minister on the 28th of November. You cannot separate politics from the Constitutional impasse or the legal crisis. What are your views?
PDTA: There is always a political dimension. Nobody can deny that. Each political party has its own calculations of gains and losses and accordingly, they fashion their strategies. In this case, it is mystifying that the Governor is not seeking clarification from the government. The government is concerned about the shortness of the term if Mr Uddhav Thackeray is nominated. Then again, there will be a crisis if the elections are not held. The Governor can seek clarification from the government on these particular points. But this has not been done. It is very unusual for a Cabinet to first make a recommendation and repeat it after two weeks. This is very unusual because under the Constitution, as I explained, the Governor has to act on the advice of the council of ministers. And if the governor has any reservations, he can seek clarification. But that has not happened.
PGT: Should the Governor seek clarification only from the Maharashtra government? Or should he seek clarification from someone else, outside experts, Constitutional experts? We are in an unprecedented situation.
PDTA: By convention, the Governor can seek a clarification from the council of ministers in case he has any doubt about the proposal that has come before him. As far as consulting other people, Constitutional experts, is concerned, that is the discretion of the Governor. Suppose the Governor is well versed in the Constitution. He is not obliged to consult anybody. He can make up his own mind, without consulting any legal experts. However, I repeat that by convention, he has to seek a clarification from the council of ministers, which he has not done.
PGT: Some things have happened which have never happened before. I mean on the 23rd of November, early in the morning, Mr Devendra Fadnavis was sworn in. Mr Ajit Pawar was sworn in. We had the Prime Minister of India taking over the powers of the Union Cabinet and asking the President of India early in the morning to ask the Maharashtra Governor to swear in Mr Fadnavis and Mr Pawar. All these things happened and it surprised a lot of people. What is likely to happen now? Maharashtra is a very important state. Mumbai is the financial capital of India. There are 20 million people in Mumbai, 40% of whom are migrant labourers. This is one of the most densely populated parts of the world. One-fourth of Mumbai lives in slums. We are talking about social distancing. This is not merely a legal issue or a political issue. There is a humanitarian angle as well. What, according to you, should the Prime Minister do under the circumstances? What do you think the Governor should do?
PDTA: I think it is the responsibility of the Governor to ensure that there is a stable government in office. This means the Governor should not allow any instability to occur for any reason. If the present Chief Minister goes because the Governor could not act, that would be unprecedented. The Governor is well aware that the Chief Minister has to go if he is not elected to either of the two houses before the 28th of May. That means there will be some instability. And the Governor has to see there is no instability from any quarter. That is the responsibility of the Governor. It is not just a political responsibility but also a Constitutional responsibility.
In the Constituent Assembly, when the powers of the Governor was being discussed, Dr (B R) Ambedkar had made it very clear that it is the duty of the Governor to see that there is a stable government in office. That duty is something the Governor has to discharge. Nothing should be done from his side that would create any sort of instability as far as the state government is concerned.
PGT: What you are suggesting is an ideal situation. But we don’t live in a Utopian world. As we were earlier discussing, Governors are political appointees even if they become Constitutional authorities after they are appointed. There are innumerable examples of Governors who have acted in a politically partisan manner. What do you think could happen in this instance? The Chief Minister has called up the Prime Minister urging him to ensure there is no political instability. Who could create political instability? Is he the Governor of Maharashtra Bhagat Singh Koshyari? The situation is most unusual and unprecedented. What could happen, Mr Achary?
PDTA: If there is political instability, who is the beneficiary? Looking at the political situation that prevailed before the formation of this government, we would tend to think that political parties are making their own calculations. Suppose the current Chief Minister goes if he is not nominated as an MLC, another Chief Minister will have to be sworn in. In between, many things can happen as they do in Indian politics. Unforeseen things can happen. And in that respect, politicians are many steps ahead of ordinary people, you and me or so-called intellectuals. Everything is in the realm of speculation. I can’t say anything for sure about what will happen if the present Chief Minister goes. That is for the politicians to decide and act on.
PGT: Thank you Mr PDT Achary. That was the former Secretary-General of the Lok Sabha discussing the legal and constitutional issues thrown up by the impending crisis in Maharashtra relating to whether or not Chief Minister Uddhav Thackeray will be able to continue in his position after the 28th of May, and the implications of political instability in Maharashtra.
Transcription: Sourodipto Sanyal