Article 164 (4) of the Indian Constitution clearly states that “A Minister (that include Chief Minister of the State) 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.”
Maharashtra chief minister Uddhav Thackeray, who took the oath of the office on 28 November 2019 has to become a member of either of the two houses of State Legislature — Legislative Assembly or Legislative Council, by 28 May.
An easy way for Thackeray would have been entering the legislature by getting “elected” to Legislative Council. But biennial polls to Legislative Council has been postponed due to coronavirus outbreak.
Now, the other probable options available with Thackeray is to get “nominated” by the Governor to the Legislative Council.
Article 171 of the Indian Constitution provides the manner in which the members to Legislative Council are elected.
It states that (A) One-third shall be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the state as Parliament may by law specify; (B) One-twelfth shall be elected by electorates consisting of persons residing in the State who have been for at least three years graduates of any university in the territory of India or have been for at least three years in possession of qualifications prescribed by or under any law made by Parliament as equivalent to that of a graduate of any such university; (C) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons who have been for at least three years engaged in teaching in such educational institutions within the State, not lower in standard than that of a secondary school, as may be prescribed by or under any law made by Parliament; (D) as nearly as may be, one-third shall be elected by the members of the Legislative Assembly of the State from amongst persons who are not members of the Assembly; (E) the remainder shall be nominated by the Governor.
The members to be nominated by the Governor shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely; Literature, science, art, cooperative movement, and social service.
Thackeray does not directly fit into any of the criteria mentioned above. But social service has a wider scope and interpretation and he can be appointed from this field.
Maharashtra Legislative Council has 78 members, which means 12 are appointed by the Governor. There are two vacancies due to resignations of NCP MLAs — Rahul Narvekar and Ramrao Wadkute — who joined the BJP before the Assembly polls last year.
The Maharashtra cabinet has already written to Governor seeking Thackeray’s appointment at one of these two seats.
But, here Section 151A in The Representation of the People Act, 1951 can create a major hurdle for Thackeray’s appointment.
Section 151 A states that bye-election for filling any vacancy shall be held within a period of six months from the date of the occurrence of the 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 bye-election within the said period.
As the term of the two seats is to end in June, there is no compulsion upon the Governor to nominate someone on that seat for the remaining period of time.
Another way for Thackeray to continue as Maharashtra chief minister is to resign and again takes the oath of the office. But, this shall face strict legal scrutiny.
In landmark case named SR Chaudhuri v. State of Punjab an important question was raised that whether someone who fails to get elected during the period of six consecutive months after he is appointed as a minister be reappointed as a minister without being elected to the legislature.
The Supreme Court held that the privilege to continue as a minister for six months without being an elected Member is only a one-time slot for the individual concerned during the term of the Legislative Assembly concerned.
The judgment stated, “As already noticed Article 164(4) in terms provides only a disqualification or a restriction for a Minister, who for any period of six consecutive months, is not a Member of the Legislature of the State to continue as such. It expressly provides that he shall on the expiration of that period cease to be a Minister unless he gets elected during that period by direct or indirect election. We must also bear in mind that no right is conferred on the concerned non-member Minister even during the period of `six months’, when he is permitted to continue in office, to vote in the House. The privilege to vote in the House is concerned only on Members of the House of the Legislature of a State (Article 189). It does not extend to non-elected ministers. He may address the house but he cannot vote as an MLA. None of the powers or privileges of an MLA extend to that individual. Though under Article 177, the individual shall have a right to speak and to otherwise take part in the proceedings of the Legislative Assembly, he does not carry with him the usual “free speech” legislative immunity as provided by Article 194(2). The individual cannot draw any of the benefits of an MLA without getting elected. All these disabilities also clearly go to suggest that `six consecutive months’ in Article 164(4) cannot be permitted to be repeatedly used for the same individual without his getting elected in the meanwhile.”
It added, “It would be too superficial to say that even though the individual Minister is a person who cannot even win an election by direct or indirect means, he should be permitted to continue as a Minister for a period beyond six months, without being elected at all and represent the electorate which has not even returned him. It would be subversive of the principle of representative Government and undemocratic. It would be a perversion of the Constitution and even a fraud on it.”
Perhaps, Thackeray has understood that bypassing all these legal hurdles to continue in the office would not an easy task hence has sought Prime Minister Narendra Modi’s intervention to sail through this constitutional crisis.