MUMBAI: Justice PB Sawant, former Supreme Court judge, who was a member of the bench that delivered the landmark Bommai judgement, suggested that the CM should file a petition in the High Court.
“This is an extraordinary and unforeseen situation, where Thackeray has the required strength to get elected to the legislative council but can't due to the pandemic.
He should file a petition in the HC and request the court to order the EC to hold an election before his term ends, as this is directly related to the stability of the government. There are only 288 voters for this election, as only assembly members can vote.
EC can complete the voting process in a week by asking legislators to come for voting on different days and time, ” Sawant said. However, if such an election or his nomination from Governor quota does not take place, then he will have to resign.
"On resigning, he should not again stake claim to form the government, as it is against the letter and spirit of the Constitution. He can nominate someone for the CM post.
After becoming a legislator, he can again become the CM,” he added. He also opined that as a governor nominee, he can become CM.
“In a normal case, it would have been against the political propriety. But since this is an extraordinary condition, Thackeray can be a nominated member and continue as CM.
Article 164 (4) has used the word 'member of any house', and not used the word as 'elected member'. Therefore, there is no ban on a nominated member becoming minister,” Sawant stressed. There is no bar legally and constitutionally on staking claim again for the CM post if Thackeray has to resign.
"The governor will take a final call on his claim. But as per the political propriety and morality, he should not be appointed as the CM, as this will be like doing things indirectly, which you failed to do directly,” Subhash Kashyap, a well-known Constitution expert said.