The uncertainty over Chief Minister Uddhav Thackeray’s election to the Maharashtra Legislative Council (MLC) has finally ended. Last Friday, the Election Commission of India (ECI) granted permission for holding elections to the Legislative Council before April 27. The ECI’s decision to hold elections came a day after governor B S Koshiyari requested the ECI to declare polls to nine vacant seats in the State Legislative Council. Thus the chief minister will be able to contest polls to the state’s upper house, averting the constitutional crisis that was looming large on his three-party Maha Vikas Aghadi (MVA) government. Thackeray is not a member of either house of the Maharashtra legislature. He was sworn in as chief minister on November 28 last year. Therefore, he has to become a member of the legislature by May 28, when he completes six months in office. 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.
While the novel coronavirus outbreak has impacted normal life across the country with 46,433 infected cases and 1,568 deaths, Maharashtra is the worst-affected state with nearly 13,000 cases and 548 deaths. Given the extraordinary situation, Thackeray’s election to the legislative council through the nomination route as recommended by the state cabinet to the governor on April 9, should have been a done thing long back. But the governor did not act on the cabinet’s request, though constitutionally he should have heeded the cabinet’s advice. Another recommendation by the cabinet on April 27 also did not impress the governor. This created a sense of uncertainty and instability: Thackeray has to be elected to either house by May 27, failing which he will have to resign. The chief minister’s resignation, by implication, leads to the entire council of ministers stepping down.
In the pre-coronavirus days, Uddhav Thackeray was supposed to contest and win election to the MLC, which was to be held on March 26. But the virus outbreak and nationwide lockdown from March 25 forced the ECI to defer the election indefinitely. Article 171 of the Constitution allows the governor to nominate certain members to the legislative council. The nominated members must be eminent persons from the field of literature, science, art, cooperative movement and social service. Currently there are two vacancies in the category of nominated members. The terms of these two nominated members is scheduled to end on June 6. Thackeray does not directly fit into any of the criteria needed for his nomination as MLC. However, social service has a wider scope and could have been used for the purpose to end the uncertainty over Thackeray’s membership to the legislature. If the governor had decided to nominate him to the legislative council, his decision, as the precedent goes, could not have been challenged in the court.
Did politics play a key role in the unnecessary drama and suspense over Thackeray’s nomination to the council? Or did the governor face a legal hurdle, since the term of nomination expires on June 6? Section 151(A) of the Representation of People Act, 1951, 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”. However, according to some constitutional experts, the constitutional provision under Section 151(A) refers to only the elected members and not nominated members. This means there could have been political reasons behind the governor’s dithering, which gave many tense moments to the MVA government before the crisis was de-escalated by the ECI. One plausible reason for the governor’s back-and-forth over the cabinet’s recommendations is said to be Koshiyari’s keenness to find a lasting solution to the issue, as nomination would have been just a temporary breather for six months, while election is a permanent response to the problem.
Whatever may be the truth, the needless uncertainty it created at a time when the state government is in the thick of fighting the virus crisis, has led to charges and counter-charges between the BJP and the ruling alliance. While some BJP leaders feel the ruling three-party alliance is pointing fingers at the governor (read BJP) to cover up cracks in the alliance, there is a feeling in the MVA camp that it was an attempt to create chinks in the alliance. Political experts are of the view that the governor’s dithering could have been part of a larger ploy to show that the coalition government could be destabilised at will, thus sending a clear message to the fence-sitting MLAs that the threat of President’s rule is a possibility in case of political instability. Others believe that it was BJP’s vendetta politics after being denied of a power in Maharashtra by the Shiv Sena. However, if people think that there were some political considerations in the governor’s refusal to heed the cabinet’s decision to nominate Thackeray, there is some ground to believe so.
It may not be a figment of imagination to say that at a time when the government is in the midst of a gargantuan pandemic problem, a constitutional chicanery and political trickery was at work in Maharashtra. The governor’s strange silence and obduracy has given rise to a perception that an attempt was being made to prevent Thackeray’s nomination going through. That’s probably how politics works. But that’s not the way the governor ought to work. Nonetheless many a time in the past, governors have acted not in the best tradition of conventions and have committed constitutional chicanery. We have seen this happening in a surprising overnight operation in Maharashtra in November last year when Devendra Fadnavis was sworn in as chief minister. After the deferment of elections because of lockdown, Uddhav Thackeray was in no illusion that the BJP would create hurdles in his nomination going through. It is why he dialled up Prime Minister Narendra Modi last week and sought his intervention. Probably the prime minister’s intervention has worked, paving the way for the MLC elections.
The writer is an independent senior journalist.