Shiv Sena President Uddhav Thackeray
File photo of Shiv Sena leader Uddhav Thackeray | PTI Photo
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New Delhi: Maharashtra is the Indian state with the highest number of Covid-19 cases, but amid the outbreak, a constitutional crisis is also brewing. Chief Minister Uddhav Thackeray, who took oath on 28 November at the head of a three-party coalition, Maha Vikas Aghadi, has just about a month to save his chair, because he is not a member of either House of the Maharashtra legislature.

Article 164(4) of the Constitution allows a non-legislator to occupy a post in the council of ministers, including the office of the chief minister, only for six months. If he doesn’t do so, the Constitution says he “ceases to be a minister”.

That gives Thackeray time until 28 May to become an MLA or an MLC, and he was hoping to get elected to the Maharashtra Legislative Council. MLAs were supposed to elect nine MLCs on 26 March, but the election was postponed indefinitely due to the Covid-19 pandemic.

Then, the state cabinet on 9 April recommended that Governor Bhagat Singh Koshyari nominate Thackeray to the Legislative Council.

Article 171 of the Constitution allows the governor to nominate certain members to the Legislative Council. The nominated members must be “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”.

There are currently two vacancies due to the resignation of two NCP legislators who joined the BJP before last year’s assembly polls. But Koshyari hasn’t made a decision yet, and the term of these two nominated members is scheduled to end on 6 June.

Constitutional experts ThePrint spoke to could not agree on whether the governor should nominate Thackeray. They shared details about other options available to the chief minister.


Also read: Lockdown casts a cloud over Uddhav Thackeray’s election to legislature and smooth run as CM


Three options

Constitutional expert and former Lok Sabha secretary general Subhash Kashyap told ThePrint that there are three options before Thackeray.

First, he can be nominated as a member of the Legislative Council by the Governor. This would fulfil the requirement of him becoming a member of the legislature within six months.

“The second option that is being thought of, as I understand, is that he resigns, and after a day or two, is reappointed, so that the six-month period starts again,” Kashyap said.

But both these options, in his view, “are against constitutional propriety and would amount to a subterfuge for doing indirectly what the Constitution prohibits”.

A similar route was taken by Congress member Tej Parkash Singh, who was appointed as a minister in Punjab in 1995. He resigned at the end of the six-month period, and was reappointed in 1996 without getting elected to the state assembly. The Supreme Court, in 2001, ruled that this was “improper, undemocratic, invalid and unconstitutional”, but by then the assembly had already completed its term, and hence, it did not impact Tej Parkash.

The third alternative for Thackeray, Kashyap said, is that the governor appoints someone else as a “caretaker chief minister”.

“There is no specific provision for a caretaker chief minister in the Constitution, but anybody can be appointed as the chief minister by the governor, subject to the governor’s instruction… So he can be appointed for the interim period, and after some time, Thackeray can get elected to one of the two houses and can be reappointed as the chief minister,” he said.


Also read: Uddhav Thackeray has failed to handle Covid crisis. Bring in Army to save Mumbai


‘No legal hitch in nominating Thackeray’

However, another former secretary-general of the Lok Sabha and constitutional expert P.D.T. Achary said there isn’t any constitutional or legal hitch in the governor nominating Thackeray to the Legislative Council.

Achary referred to reports which claimed that Section 151A of the Representation of the People Act, 1951, acted as a hurdle in this nomination, because the term expires on 6 June. This provision says election 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”.

But Achary told ThePrint that the provision talks about elected members and not nominated members.

He asserted that the governor has “no other option” but to nominate Thackeray, as he is bound by the cabinet’s recommendation.

He emphasised that this is not “governor’s quota”, and is a requirement laid down by the Constitution.


Also read: No communal angle to Palghar, strict action against those fuelling hate: Uddhav Thackeray


‘Not the time to settle political scores’

Constitution expert Faizan Mustafa also asserted that the governor should accept the recommendation made by the state cabinet and nominate Thackeray to the Legislative Council. Mustafa clarified that if the governor accepts the recommendation, he would not be violating any provision of the Constitution.

Highlighting the “extraordinary situation” prevailing in the country due to Covid-19, he said: “Maharashtra is the worst-affected state and Uddhav Thackeray has been leading from the front… I don’t think that for our political interests, we should have a constitutional crisis under which he will have to resign, and a new leader will have to be elected.”

He added: “This is not the time for political scores being settled, and one more state being brought under the control of BJP.”


Also read: If Uddhav Thackeray bows before Arnab Goswami’s dare, he will only weaken himself before BJP


 

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25 COMMENTS

  1. 1)This *Maha Vikas Agadi* are GET TOGETHER to SAVE the people of Maharashtra. and a message to Delhi government to wake up.

    2)What was the RESULT of Note banned, what happened after note banned our economy get down. Lots of people lots their jobs, lots of people are die in line of bank. Lots of company are shut down.
    Their must be proper guide line to do all thing.

    3)what happened when flood in kholapur, sangali etc at that time Mazi cheif minister fadnavis saheb was busy in political rally after he wake up from political rally to help people who are in floods even PM aslo busy.

    4)Now a central government pass NRC CAA . again clashes again dangal.

    5)30 January first case of coronavirus find in Kerala who was studying in Wuhan china.

    6(WHO on 30/january/2020 outbreak coronavirus is a pandemic. —–
    —————-Even on 24 /February /2020 *NAMASTE TRUMP PROGRAME* HELD BY PRIME MINISTER of INDIA MODIJI.
    WHY PM FAILED TO DO LOCKDOWN, 30 JANUARY,
    ON (24 /MARCH /2020 ) AFTER 60 DAYS PRIME MINISTER MODIJI OF INDIA Wake up to DECALERE LOCKDOWN when ——-when —– WHOLE INDIA IS SUFFERING FROM CORONAVIRUS DISEASE.
    ———-Who is responsible for late decision, why not aware of pandemic why?———-
    7)We want peace and security in India.
    We want educated people .

  2. Uddhav Thakre is a opportunistic politician who has betrayed the mandate of the people of Maharashtra and shamelessly joined hands with NCP and Congress. Further, beside getting the the post of Chief Minister, he allowed cabinet berth to his inexperienced novice son.

  3. Udhav Thakrey , could not get elected due to postponement of election of MLC indifintely due to unprecedented corona problem. It is Udhav’s fault ,hence governer should nominate Udhavji in the category of social service.

  4. It is so funny to read all the comments from Non-maharashtrian people to say Maha CM failed and he should resign etc.
    While, in MAHArashtra Marathi people are overwhelmingly supporting Mr. Thackeray.

  5. If Udhav Thackeray can insult people’s mandate and form an opputunistic alliance with NCP and congress and Aditya Thackeray can proudly offer burnol to BJP on the floor or the house ,whats wrong if People try to settle political scores as they say ‘every thing is fair in politics’

  6. Mr Umesh K Shetty : It is sad in democracy that a Governor of a state delays a decision for his liking of candidate, the same Governor is available in the Mid night as well as early Morning to establish his party of like as a CM today it’s been 14 days the elected MLAs have given their choice of CM…
    Sadly Governor is not respecting the choice of Majority……..They are demining their position

  7. The present government has been handling the corona crisis efficiently. There are more experienced and efficient ministers in this ministry than the previous government. Though a poor orator he is a sensible leader and not getting trapped in controversies created by extremist, prestitute journalists trying to create unrest with communal journalism. ( ref to Palghar incidence) Maharashtra has been known as best governed state with best industrial base and educational institutions. Mumbai has been home to highest number of Indians who are from outside Maharashtra. Being commercial capital of India with highest number of visitors from India and outside
    , Covid19 is highest in India and is no fault of present government.

  8. Till 2014, every politician was seen as corrupt. Dont understand what changed in 2014 that suddenly people (IT cell idiots of any party not included) see politicians from 1 party as honest and the rest anti-national, sickular, librandu, commie, etc.

  9. Why governor taking long time to take decision, in the past governor worked out entire night for lifting president rule and Oath as a CM was taken before sunrise.

  10. Why the Governor is sitting on the Cabinet recommendation? He was very fast in appointing Fadnavis as CM at midnight, even though he didn’t enjoy majority.

  11. I think the current debate on the subject is a much ado about thing. It is like the typical suspense in a Bollywood, Tollywood film keeping the viewers guessing until THE END. If Uddhav Thackeray is destined to continue as the state CM, he shall. Let us sit back and relax; read all columns on the subject and just forget it, don’t strain your brains. Politics will remain political.

  12. There is One more option for Uddhav thackeray to evacuate himself from trouble , can calls to Election commision of India for
    conduct election on eight vacant assembly seat in maharashtra before completing his 6 months Tenure which is ending on 28 May 2020 but it’s difficult task to conduct election during this Covid 19 crisis, and I have got information that ECI get entrapped in USA since 23 march when PM modi calls out Lockdown in India , if it happens then can reduce trouble , although its difficult task . Haplessly, Otherwise he may loose his post .

  13. THE GOVERNOR MUST DISMISS CORRUPT GOVT IN MAHARASTRA. PRESIDENT RULE SHOULD BE IMPOSED IMMEDUATELY. A CBI ENQUIRY SHOULD BE ORDERED IN CORRUPTION CASES OF POLITICIANS INVOLVED IN LOOTING STATE RESOURCES BY ABUSING POWER.

    • What about CBI/NIA enquiry in the murder of 2 sadhus and their driver in Palghar? It’s definitely not a random act of mob lynching.

  14. Shri udhav thakrey should be honoured by nomination by the governor as recommended by members. He has struggled in this hour of epidemic crises. Wish respected governor will take a positive deecsiin soon. May God bless 🙏 both the state hesds

  15. Why he is so keen to ‘head’ the state govt which was evidently constituted consequent upon an unholy and opportunistic political alliance among NCP-Congress-Shiv Sena in Maharashtra. Where was the people’s actual mandate therefor? So there could be two options. First, some highly influential yet competent Shiv Sena’s MLA, who may be acceptable to Mahrashtra Agadhi, takes over the reign of Maharashtra, purely on temporary basis. In the meantime, some low key party MLA should ‘vacate’ his seat in favour of Uddhav Thackeray. Uddhav may then try his luck at the ballot boxes and ‘regain’ the power at the earliest available opportunity.

    • This is the fairest approach….but I don’t think Uddhav would want to try his hand at ballot boxes. Would he? To top it all, the murder of 2 sadhus (and their driver) in the name of a staged mob lynching has exacerbated things for MVA govt. An NIA enquiry must be set up.

  16. Please check today’s COVID positive number before doing politic at this time. Please try to think about public at some point in life keeping politics aside.

  17. As a special extraordinary circumstance due to civil the term of the Chief Minister could be extended for another six months with the governor’s sanction.

  18. Best option and opportunity for Udhav to free himself as well as the people of Maharashtra from the claws of Congress and NCP

    • अगदी बरोबर, असल्या रोगग्रस्त राज्याचा कारभार राज्यपालांनी संभाळणे योग्य. मग केंद्रा सरकार कडून करोनाशी चांगला सामना करता येईल.

  19. Just come above the Politics and think of Maharashtra. This no time to play the dirty games. The Governor should do the needful so Thackerey Saheb can continue without any confusion at this crucial time.

  20. PDT Achari is giving interesting view. He is now willing to get a CM who was nominated on his own recommendation to the legislature.. What are the democratic rantings he undertake in Kerala Channels even when one is nominated to Rajya Sabha with the backing of numerous precedents, must be seen to be believed. One should not think people are fools!

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