Context

The Maharashtra Cabinet recommended to Governor Bhagat Singh Koshyari that Chief Minister Uddhav Thackeray should be nominated to one of the seats reserved for the Governor’s nominee in the state Legislative Council.

A fortnight on, Koshyari is yet to act on the Cabinet’s recommendation — even as the Chief Minister’s current term in office approaches its end. A constitutional crisis looms.

Thackeray can be said to have a stronger claim in this regard — he is an ace wildlife photographer and, as per the Allahabad High Court in Har Sharan Varma vs Chandra Bhan Gupta And Ors (February 15, 1961), even politics can be seen as ‘social service’.

Provisions of the Constitution

• Thackeray took oath on November 28, 2019 — and in accordance with Article 164(4), “a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister”.
• It follows that the Chief Minister must become part of the Maharashtra legislature before May 27; however, with the pandemic raging, a by-election cannot be held. The only way to fulfil the requirement, therefore, is for Thackeray to be nominated to the Upper House by the Governor.

In S R Chaudhuri vs State of Punjab and Ors (2001)

• The Supreme Court had ruled that “it would be subverting the Constitution to permit an individual, who is not a member of the Legislature, to be appointed a Minister repeatedly for a term of ‘six consecutive months’, without him getting himself elected in the meanwhile. The practice would be clearly derogatory to the constitutional scheme, improper, undemocratic and invalid”.

The nomination route

• A situation in which an individual who is not a member of the legislature becomes chief executive of the government is in itself fairly common. H D Deve Gowda was not a Member of Parliament when he was appointed Prime Minister in June 1996. Sushil Kumar Shinde and Prithviraj Chavan were not members of the Maharashtra legislature when they became Chief Minister in 2003 and 2010 respectively. Thackeray is likely to have had no problems becoming a member of the legislature had the pandemic not hit.
• The nomination route for non-member Ministers is less common — but not unconstitutional. In 1952, C Rajagopalachari was nominated as Chief Minister of Madras by Governor Sri Prakasa. In Maharashtra, Datta Meghe and Dayanand Mhaske were nominated to the Vidhan Parishad by the Governor after being appointed Ministers.

Under Article 171(5)

• the Governor can nominate “persons having special knowledge or practical experience in respect of. literature, science, art, co-operative movement and social service”. Last month, the President nominated former Chief Justice of India Ranjan Gogoi to Rajya Sabha even though there were doubts about him meeting these prescribed qualifications.

The role of the Governor

• Two Legislative Council seats in the Governor’s quota are currently vacant; however, the terms of these vacancies end on June 6, and a fresh appointment can be made only for the remainder of the term. It has been argued that Section 151A of The Representation of the People Act, 1951, prohibits the filling of a vacancy if “the remainder of the term of a member in relation to a vacancy is less than one year”. However, this cannot be a reason for the Governor to refuse nomination — because the bar is in respect of by-election to fill a vacancy, not nomination.
• Of course, the Governor could argue that he is not obligated under the Constitution to act swiftly on the advice of the Council of Ministers; also, why should he nominate Thackeray only to save his chief ministership? But it is important to note the extraordinary context — India is currently battling a health emergency of the kind not seen in the history of the republic. Political uncertainty is the last thing that Maharashtra, which has the highest coronavirus case load and death toll by far in the country, needs at this moment.

The question of discretion

• What are the limits to the Governor’s discretion in nominations? In Biman Chandra Bose vs Dr H C Mukherjee (1952) the Calcutta High Court rejected the plea that none of the nine nominated members to the legislature fulfilled the required criteria, and held that the Governor cannot use his discretion in nominating members to the Council. He has to go by the aid and advice of the Council of Ministers.
• Article 163(1) of the Constitution makes it clear that the Governor must follow the recommendations of the Council of Ministers in all situations “except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion”.
• It can be argued that Koshyari is bound by the advice of the Council of Ministers only in executive matters as defined in Article 162 (those “with respect to which the Legislature of the State has power to make laws”) — and since the nomination of members is not an executive power, he can act in his discretion.
• However, it must be noted that under Article 169, while Parliament has the power to abolish or create a Legislative Council, it can pass such a law only after the state Assembly has passed a resolution to that effect. Thus, the legislative power of the Assembly can be inferred from this provision.
• Also, the Constitution specifically mentions the situations in which the Governor can act in his discretion, e.g., Article 239 (Administration of Union Territories), Article 371 (Special provision with respect to the States of Maharashtra and Gujarat), Article 371A (Nagaland), Article 371H (Arunachal Pradesh), and in the Sixth Schedule (Provisions as to the Administration of Tribal Areas in Assam, Meghalaya, Tripura and Mizoram), etc.
• The Governor does have a general discretion in appointing the Chief Minister, but there are well established conventions governing the exercise of such discretion. Even the Governor’s pardoning powers are to be exercised on the aid and advice of the Council of Ministers (Maru Ram vs Union of India, 1980).
• In Hargovind Pant vs Dr Raghukul Tilak & Ors (1979), the Supreme Court held that the Governor is not an employee of the central government. He is neither under its control nor accountable to it, and is an independent constitutional office.