Amid Corona crisis and consequent lockdown across India, Maharashtra’s un-elected Chief Minister, Uddhav Thackeray is evidently facing challenges; as he has a month to save his Chief Ministerial position.
Brief Introduction to the Story
Uddhav Thackeray took oath as the Chief Minister of Maharashtra on 28th November, 2019 at the head of a three-party-coalition. Maha Vikas Aghadi is not a member of either House of the state legislature. Since, the Legislative Assembly elections are over, the only surviving option left for him is to get nominated to the Legislative Council.
On 26th March 2020 elections for the nine seats of the Legislative Council were to be held; however they face postponement indefinitely, due to the COVID-19 Pandemic. On 9th April, the Governor, Bhagat Singh Koshyari received a recommendation from the State Cabinet. It was to nominate a member to the Legislative Council. He can do so using his power under Article 171(3)(e) of the Constitution.
Executing his power under the said article, the governor can nominate members with special knowledge or practical experience. This is in regards to fields like literature, science, art, the co-operative movement, and social services to the Legislative Council. Founding President of Bharat Jan Aadhar Party, Sunil Arora moved the Bombay High Court. He put forward the proposal to nominate Uddhav Thackeray as an MLC as being act upon expeditiously.
His plea states that the Governor has to act with the aid and advice of the council of ministers; and since Uddhav Thackeray has been a professional photographer, editor, and social worker, he qualifies for such nomination. Now, the seats in the Maharashtra’s Legislative Council fell vacant on the 24th of April 2020; consequently he has to demit his office on 27th May 2020.
Legislation and Precedent
Article 164(4) of the Constitution and its relation to the demission of Chief Minister along with few judicial pronouncements by the Hon’ble Supreme Court of India
The assumptions of his demission is based upon the article 164(4) of the Constitution of India. The articles reads, “A Minister 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.”
This period of six months is consistent as a privilege to the ministers in India; who hold their respective offices without election to any Houses of the legislature. Also, there is some judicial pronouncement by the Hon’ble Supreme Court of India; This is in regard to holding the provision mentioned under Article 164 of the Constitution. For instance, the conclusion in Har Sharan Verma v. Tribhuvan Narain Singh, the Constitutional Bench was “The Rule of responsible Government that ministers must be Members of Parliament is ensured by the statutory requirement that they be or within three months become members of either House.”
In S.R. Chaudhuri v. State of Punjab & Ors, the Hon’ble Supreme Court of India stated, “The sequence and scheme of Article 164, which we have referred to in an earlier part of our order, clearly suggests that ideally, every minister must be a member of the legislature at the time of his appointment; though in exceptional cases, a non-member may be given a ministerial berth or permit to continue as a Minister, on ceasing to be a member, for a short period of six consecutive months only to enable him to get elect to the Legislature in the meanwhile…”. Thus, it is very much clear that a person appoint as a minister but who is not a member of either house of the Legislature must get ‘elect’ within a period of six months.
Elections to the Maharashtra Legislative Council to be held by May 21
Initially due to the COVID-19 Pandemic and the consequent lockdown, no granting of permission for holding of elections in India followed, via orders from the Election Commission of India. However, complying with the Governor’s request, the Election Commission of India declared to hold a biennial election for the nine-vacant seats of the Maharashtra Legislative Council on 21st May 2020. This election will provide an opportunity for him to mark his debut as a legislator; and it will also be interesting to see the contest for nine seats of the MLC.
Has Uddhav Thackeray completed six-months as the Chief Minister of Maharashtra amid Lockdown consequent to the Pandemic outbreak?
In the current scenario, it is interesting to know whether or not Uddhav Thackeray completed the entire period of six months since his appointment as the CM of Maharashtra in November 2019? The Central Government of India announced a nation-wide lockdown on March 25 which is to last till May 18. Taking into consideration big financing projects which are facing challenges as the parties are unable to meet the contractual obligations.
These hardships have forced these parties to review their contractual provisions to seek suitable rights and obligations, particularly force majeure. Declaration of the pandemic as a force majeure; and thus discharge the commercial agreement helps in exasperation of the hardships the parties face. There are few such parties with commercial agreements that attain relief by the courts in India.
For instance, in the case of Transcon Sky city Pvt. Ltd v. ICICI bank & others, there were contractual financial facilities petitioners availed; Transcom Skycity Pvt Ltd and Transcom Ironic Pvt. Ltd from ICICI banks, which receive payment via installments. However, the petitioners defaulted on two payments due on January 15, 2020, and February 15, 2020. Now, as per the relevant RBI circulars and notifications, if a default occurs and the account is not in regulation within 90 days of the date of default, then the borrower’s account was classified as an NPA.
The Bombay High Court extending ad-interim relief to the petitioner’s prima-facie ruled the exclusion of the period of lockdown in the calculation of the 90 days for declaration of an account as a non-performing asset. Coming to the post of a minister or chief minister, it should be remembered that the same is not formed out a contractual arrangement. Therefore, frustration of agreement due to any supervening event is not possible; alike the current lockdown consequent to the pandemic outbreak. The application of Principle of exclusion of time in the aforementioned case cannot apply in the case of Uddhav Thackeray; this is because of his completion of six months as an un-elected chief minister of Maharashtra.
Brief difference between the elections to Legislative Assembly and Legislative Council; and whether a member nominated to the Legislative Council can continue his former ministerial position?
The Legislative Councils are meant to play the role of Rajya Sabha in the state. Its process of election is quite different from that of a Legislative Assembly. It consists of members elected through five different constituencies not by the people; but through the Single Transferrable Voting (STV) system. Interestingly, it is notable that there is a little dilemma as to whether or not a member nominated to the Legislative Council can continue his ministerial position.
Taking a look at the debate in the Constituent Assembly, many members, while participating, contemplate that a person who wishes to stay away from the heat and dust of election, can attain nomination as a member of the Legislative Council.
However, the statement is unclear as to whether or not a person part of the Legislative Council attains the membership of the government or simply retains his former ministerial position. In conclusion, this indicates that the assembly did not intend to include a nominated member to the Legislative Council can participate in the function of government or retain his former ministerial position.
Shri. Fali Nariman, a note-worthy jurist, former member of the Council of States makes a significant observation in regard to the status of a nominated member of a parliament in his autobiography, “Before Memory Fades”. The relevant excerpt reads: The status of a nominated member of a parliament is that he or she is a non-party member to whom the party whips of none of the political parties applied.
A nominated member is, strictly speaking, an independent member with no party affiliation or leanings. Lastly, in conclusion, a member nominated to the parliament can not participate in the function of governance; since there are no such precedence or provision regarding the same.
Conclusion
Maharashtra with the highest number of Corona-positive cases has been the worst-hit state in the entire country. However, it is incorrect to say that the state will suffer a Constitutional crisis, in case Uddhav Thackeray vacates his Chief Ministerial position. However, it was possible to previously elect Mr. Thackeray from a particular constituency; but he did not avail that opportunity. Now, setting aside all the personal pride and prejudices, it would be better to comply with the constitutional requirements.
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