A few months back, the formation of the Maharashtra government by a coalition led by the Shiv Sena along with the Indian National Congress and the NCP (termed as Maha Vikas Aghadi) was followed by a tug of war for power in the state.
Even as the dust settles on that controversy, there appears to be another constitutional crisis on the horizon.
In the case at hand, Uddhav Thackeray took oath as the Chief Minister on November 28 last year. To date, he is neither a Member of the Legislative Council of the State (MLC) nor a Member of the Legislative Assembly (MLA). Thus, he has to either become an MLA or an MLC on or before May 28, 2020.
In the state of Maharashtra, MLC elections for 9 seats was to be held on March 26. However, the same has been postponed indefinitely due to the COVID-19 pandemic. The MLA elections are already over. In view of the inevitable postponement of the MLC elections, the only surviving option for Thackeray is to get nominated to the Legislative Council.
Interestingly, on April 9, the State Cabinet recommended that the Governor use his powers under Article 171(3)(e) of the Constitution. This power of the Governor to nominate a citizen to the Legislative Council is bound by Article 171(5), which mandates that the members nominated by the Governor under Article 171(3)(e) shall consist of persons having special knowledge or practical experience in respect of matters such as literature, science, art, co-operative movement and social service.
It has been almost three weeks since the Cabinet's decision to nominate Thackeray was conveyed to the Governor. However, a decision is yet to be taken and conveyed.
The Crisis
What if the Governor does not nominate Thackeray to the Legislative Council? Is the discretion of the Governor to not appoint a citizen to Legislative Council under Article 171(3)(e) amenable to judicial review? What is the scope of judicial review of the Governor’s discretion? Let us examine.
The law and its backdrop
As per Article 164(1) of the Constitution, the Governor appoints the Chief Minister of the State. All other Ministers are appointed by the Governor on the advice of the Chief Minister. Article 164(2) states that the Council of Ministers shall all be collectively responsible to the Legislative Assembly of the state. This provision indicates that the Council of Ministers shall all be members of the Legislature, to which the Council of Ministers is collectively responsible.
This, however, is subject to an exception provided by Article 164(4) where the Chief Minister considers the inclusion of a particular person, who is not a member of the Legislature, in the Council of Ministers necessary. To take care of such a situation, 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. The expression "Minister" will include a Chief Minister who remains the captain of the ship.
What the Supreme Court has held
The ambit and scope of Article 164(4) was examined by a Constitution Bench of the Supreme Court in Har Sharan Verma v. Tribhuvan Narain Singh (Har Sharan I). The issue in this case arose out of the appointment of TN Singh, who was not a member of either House in the State of Uttar Pradesh, as Chief Minister. The Constitution Bench observed that invariably, all Ministers must be members of the assembly, but if in some exceptional case a Minister is not a member, he can continue to be a Minister for a brief period during which he must get elected in order to continue as a Minister.
The Court rejected the challenge to the appointment of Singh as Chief Minister in view of Article 164(4) and opined that the Governor has the discretion to appoint, as a Chief Minister, a person, who is not a member of the legislature at the time of his appointment. However, the Chief Minister is required to get himself elected to the legislature within a period of six consecutive months from the date of his appointment.
After a few years, through the 44th Amendment in 1978, Article 173(a) of the Constitution was amended to read –
"Article 173 - Qualification for membership of the State Legislature.- A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he-
(a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule"
The issue was once again raised in Har Sharan Verma - II. The argument was that by virtue of Article 173(a) now, a Governor cannot appoint a person who is not a Member of the Legislature as a Minister under Article 164(1) as the concession under Article 164(4) would only be applicable to a person, who has "been a Minister but who ceases to be a member of the Legislature for some reason or the other such as the setting aside of his election in any election petition".
The Supreme Court held that there is no material change brought about by reason of the amendment to Article 173(a) in the legal position that a person who is not a member of the State Legislature may be appointed as a Minister subject to Article 164(4).
An issue of interpretation of Article 75(5)[3], which is in pari materia to Article 164(4), came up for consideration in Har Sharan Verma - III. In this case, the appointment of Sita Ram Kesari as a Minister of State in the Central Cabinet was challenged before the Allahabad High Court, once again by the same writ petitioner. The ground was that since Kesari was not a Member of either House of Parliament on the date of his appointment as a Minister, he could not have been appointed as a Minister of State in the Central Cabinet.
The High Court dismissed the writ petition by a reasoned order, though in limine. The Supreme Court agreed with the High Court, and after taking note of Article 75(5) and Article 88, held that a person not being a member of either House of Parliament can be a Minister for up to a period of six months. Though he would not have any right to vote, he would be entitled to participate in the proceedings thereof, the Court held.
HD Deve Gowda, who was not a Member of either House of Parliament, was appointed as the Prime Minister of India. His appointment was put in issue in SP Anand, Indore v. HD Deve Gowda & Ors. The Supreme Court upheld his appointment.
In SR Chaudhuri v. State of Punjab, the Supreme Court was called on to decide whether a non-member, who fails to get elected during the period of six consecutive months after he is appointed as a Minister or while a Minister has ceased to be a legislator, can be reappointed as a Minister, without being elected to the Legislature after the expiry of the period of six consecutive months?
The Court answered in the negative, and held that the privilege of continuing as a Minister for six months without being an elected member is only a one time slot for the individual concerned during the term of the concerned legislative assembly. It exhausts itself if the individual is unable to get himself elected within the grace period of six consecutive months. To permit the individual to be reappointed during the term of the same legislative assembly, without getting elected during the period of six consecutive months, would be subversion of parliamentary democracy, the Court held.
These views were reiterated in Asok Pande v. Mayawati.
Answers
Thus, it is crystal clear that Thackeray will cease to be Chief Minister on May 28, if he is not elected/nominated to the state legislature by then. The decision of the Governor to not nominate Thackeray to Legislative Council is subject to judicial review, as no discretion can be unfettered.
But this discretion is extremely sensitive, as the nomination implies granting and the non-nomination would imply depriving a person the post of Chief Minister. The latter decision will render Thackeray ineligible from becoming the Chief Minister for the entire five-year term of the present Legislature.
It will be interesting to see whether the exercise of discretion and the judicial review of the same should be on the same principles applicable to choosing and appointing a Chief Minister as under Article 164(1).
Nomination here, in effect, means appointment. An argument may be raised that nomination here would simply imply continuance and not a fresh appointment, as no fresh oath will have to be taken. While that may be true, the end effect of the nomination cannot be ignored. Non-nomination will mean a fresh Chief Minister and a fresh oath. Therefore, the value of the decision will decide who gets to serve as Chief Minister.
In Nabam Rebia v. Deputy Speaker, the Apex Court held that the appointment of the Chief Minister is based on the postulate that he commands or is expected to command the support of a majority of Members of the Legislative Assembly. Therefore, it is not as if the Governor has untrammelled discretion to nominate anyone to be the Chief Minister of a State.
Recently, the Supreme Court in Shivraj Singh Chouhan v. Speaker, Madhya Pradesh Legislative Assembly held that a Governor's power is not intended to destabilise or displace a democratically elected government accountable to the legislative assembly and collectively responsible to it. It observed that a Governor, being an appointee of the President, does not represent either a political ideology or a political view, and he/she ought not exercise his/her authority in aid of a political dispensation.
It is also trite law that the Governor is bound by the act and advice of the Council of Ministers.
While the discretion of the Governor on appointment of the Chief Minister has been challenged multiple times, the case at hand, if challenged, will perhaps be the first such instance that a discretion of nomination will be challenged. A constitutional crisis thus awaits the Supreme Court.
The author is an Advocate-on-Record at the Supreme Court of India.