With India going through the health crisis of COVID-19, Maharashtra is the most severely hit state. However, apart from the health crisis in Maharashtra, another crisis has emerged in the state. Maharashtra is soon going to face a constitutional crisis.
Maharashtra CM Uddhav Thackeray was supposed to contest and win election to the Maharashtra legislative council. The election was to be held on March 26 for nine seats to be elected by the MLAs. But the coronavirus outbreak forced the Election Commission to postpone the election indefinitely.
If Maharashtra Chief Minister Uddhav Thackeray does not find a constitutional way out, he might have to resign from his post. Uddhav took oath as chief minister on November 28 last year. He was -- and is -- not a member of either of the two houses of Maharashtra legislature.
Article 164 of the Constitution grants a non-legislator to occupy a post in the council of ministers, including the office of the chief minister for six months. Uddhav Thackeray's deadline ends on May 28.
Shiv Sena-NCP-Congress members have to come out with a constitutional solution to find a way out. Recently, the government requested Governor BS Koshiyari to nominate Uddhav Thackeray to the legislative council from his discretionary quota.
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The Maharashtra legislative council has two vacancies to be filled by the governor's nominations. Article 171 of the Constitution says the governor can nominate eminent persons from the field for literature, science, art, cooperative movement, and social service.
Uddahav Thackeray does not directly fit into any of the criteria mentioned but social service has a wider scope. And, if governor nominates somebody to the legislative council, his/her decision cannot be challenged in the court, at least as of the precedent right now.
Governor Koshiyari has not nominated CM Uddhav to the legislative council yet. Shiv Sena leader Sanjay Raut questioned that who is stopping the governor from nominating Uddhav Thackeray to the legislative council?
This could well be politics but there are some legal hurdles as well. Section 151A of Representation of the People Act 1951 puts a bar on the governor's discretionary power to nominate a person to the legislative council.
It says election or nomination to vacant seats in the legislative council cannot be done "if the remainder of the term of a member in relation to a vacancy is less than one year".
The tenure of the two vacancies that arose on the account of resignations by Rahul Narvekar and Ramrao Wadkute, ends in June. That is, Narvekar and Wadkute would have ceased to be MLCs in Maharashtra in June - obviously, the remainder of the term is less than a year.
So, as things appear at present, Uddhav Thackeray cannot become an MLC before May 28. Then the big question arises whether Uddhav Thackeray will have to resign after May 28?
Technically, he can be reappointed as the Maharashtra chief minister again after he resigns on May 27 or 28 and takes oath afresh. Alternatively, another Shiv Sena member can take oath if Uddahv Thackeray fails to find a way out of this constitutional crisis, essentially brought on by Covid-19 pandemic.
If Uddhav decides to resign and takes oath afresh, there could another obstacle. This relates to a case in Punjab, where Tej Parkash Singh of the Congress was appointed a minister in 1995 and was reappointed at the expiry of six months' period in 1996 without getting elected to state assembly.
Litigation followed. And, in 2001, the Supreme Court declared the resign-and-reappoint bid as "improper, undemocratic, invalid and unconstitutional". This judgment did not have a bearing on Tej Parkash Singh but may come in the way of Uddav Thackeray if he takes the same route.