On Wednesday, 29 April, news reports emerged that Maharasthra Chief Minister Uddhav Thackeray had called Prime Minister Modi the previous evening, and asked for his cooperation in resolving the brewing constitutional crisis in the state, which could see Thackeray unseated if the Governor fails to take action soon.
Thackeray reportedly expressed unhappiness over the “politics being played” by Governor BS Koshyari, who has been sitting on a request from the Maharashtra government to nominate the Shiv Sena leader as a member of the Maharashtra Legislative Council for three weeks now and counting.
A visit by a delegation of ministers from the Shiv Sena-NCP-Congress coalition government in the state, to the Governor on Tuesday, had no effect on Koshyari either, following which Thackeray is said to have called PM Modi.
Koshyari finally released a statement on Thursday, 30 April, asking the Election Commission to conduct elections to the Maharashtra Legislative Council as soon as possible, but this doesn’t necessarily mean the end of Thackeray’s problems. The Election Commission announced on 1 May that the elections are to be conducted on 21 May in Mumbai.
But why did Uddhav Thackeray have to approach the PM to ask for his help over this whole issue? Why does he want to be appointed to the Maharashtra Legislative Council? And what will happen if he isn’t?
The Ticking 6-Month Clock
The reason for this whole controversy lies in Article 164(4) of the Constitution of India, and the six-month timeframe it gives for a minister in a state government to get themselves elected to a state legislature.
This is because technically, to become a minister in a state government – or even chief minister – you don’t actually have to be an elected member of the state’s legislative assembly. Uddhav Thackeray did not stand for election as an MLA in the Maharashtra elections last year, but this didn’t stop him from becoming CM of the coalition government at the end of November, 2019.
However, the Constitution doesn’t allow such an unelected person to remain in a position of power indefinitely.
Article 164(4) says that if such a minister doesn’t get elected to the state’s legislative assembly or legislative council (basically the equivalent of a Rajya Sabha in some states), he will cease to be a minister.
Uddhav Thackeray was sworn in as chief minister of Maharashtra on 28 November, which means that he has time till 28 May to get himself elected to the Maharashtra Legislative Assembly or the Maharashtra Legislative Council.
Why This is Proving Difficult for Uddhav Thackeray?
It was all supposed to be simple. The Maharashtra Legislative Council has nine vacancies at present, which have to be filled through elections in which MLAs vote. The elections for these nine seats were supposed to take place on 26 March, two months clear of Thackeray’s six-month deadline.
With the Maha Vikas Aghadi (MVA) holding a majority in the legislative assembly, Uddhav Thackeray’s election to the legislative council would have been just a formality, allowing him to continue as chief minister without any problems.
However, because of the coronavirus outbreak, the legislative assembly is not sitting, and the Election Commission had to postpone the elections to the legislative council – and it was unclear whether these could be held before the 28 May deadline to unseat the CM.
To avoid this becoming a problem, the MVA coalition government cabinet sent a recommendation to Governor Koshyari on 9 April, asking him to nominate Thackeray as a member of the legislative council (MLC). The governor of Maharashtra gets to nominate 12 MLCs – currently there are two vacant positions, which Governor Koshyari is yet to fill.
However, despite the recommendation sent by the cabinet three weeks ago, and a reiteration of the same on 27 April, the governor has not till date agreed to nominate Uddhav Thackeray as an MLC. Generally, in the same way the President of India is bound by the aid and advice of central government’s council of ministers, the governor of a state is bound by the aid and advice of the state’s council of ministers.
However, Koshyari was understood to be taking legal advice and consulting with constitutional experts on what his options are at this point, following which he finally issued his statement on 30 April.
What Happens Now?
Governor Koshyari’s letter to the Election Commission will have been welcomed by Thackeray and the Maharashtra government.
By asking the EC to hold elections for the nine vacancies in the legislative council “at the earliest”, Koshyari has thrown his support behind a request made earlier on 30 April by members of the Maha Vikas Aghadi government. As the lockdown is supposed to be relaxed after 3 May, this may be a strong opportunity for Thackeray to resolve his predicament and avoid having to resign.
If the EC organises the elections before 27 May, as they have now said they will, the constitutional crisis will clearly be averted. In fact, this would be a better solution for Thackeray than getting the nomination from the governor, as the nominee-MLC’s tenure only lasts till June 2020 – which means he would have to stand for the elections in any case, whenever they take place.
However, what happens if the EC cannot organise the elections? After all, the pandemic has not yet been conquered, and like the earlier deferral, the EC may not have a choice.
There is still more than enough time for Governor Koshyari to accept the recommendation of the Maharashtra cabinet, and nominate Thackeray as an MLC, thereby avoiding the crisis. With PM Modi and former Maharashtra CM Devendra Fadnavis both reportedly saying they don’t want to create instability in the state, there seems little reason for Koshyari to refuse.
However, there was little reason for him to do so before as well. If the elections can’t happen and Koshyari fails to process the nomination quickly, these are the scenarios that could then play out:
SCENARIO 1 - APPROACH SUPREME COURT
The Maharashtra government could approach the Supreme Court and ask the judges to direct Koshyari to nominate Thackeray as an MLC before 28 May. The apex court is hearing urgent cases even during the lockdown, via video conferencing, and given the circumstances, including the delay of the MLC elections, they could be persuaded to hear this case.
However, to get the court to pass the direction it needs, the Maharashtra government will need to convince the judges that the governor is bound by the aid and advice of the council of ministers for this purpose as well, even though it appears this is a matter of the governor’s discretion. More importantly, they will have to convince the judges that not only is the governor bound to do what they say, he also has to do it within the timeframe they indicate, which the court may not agree to.
SCENARIO 2 - UDDHAV RESIGNS, BUT THEN GETS REAPPOINTED
The wording of Section 164(4) says that an unelected minister ceases to be one if they haven’t been a member of the legislature for “any period of six consecutive months”. Thackeray could, presumably, therefore, resign before the six month period ends, and then just become appointed CM again, as it wouldn’t have been six consecutive months that he wasn’t part of the state legislature.
However, while this seems to be possible on the basis of the wording in Section 164(4), the Supreme Court in 2001 (SR Chaudhari vs State of Punjab) plugged this loophole and held that once a minister resigns, they cannot just become a minister again, without first getting elected as an MLA or MLC. Thackeray could potentially take this option, and try and fight the application of the 2001 precedent in the court till such time as the MLC elections take place, but this would be highly risky.
SCENARIO 3 - UDDHAV RESIGNS, OTHER MVA CANDIDATE RULES TILL MLC ELECTIONS
If all else fails, Uddhav Thackeray could just resign as CM, and allow his deputy Ajit Pawar, or someone else from the coalition, to take over as CM till the elections for the 9 vacant MLC posts are held, following which he can once again take over the reins of the government.
Of course, this would be bad in terms of the optics, and would also be an unwelcome disruption in the middle of the handling of the coronavirus crisis. It could also lead to attempts by the opposition in Maharashtra to demand fresh floor tests/trust votes when the new chief minister takes over, on the pretext that the changes in leadership require the same, again leading to disruptions and possibly attempts at horse trading.