Maharastra is in the news for the unenviable distinction of having the most number of Coronavirus cases and related deaths. Uddhav Thackeray, Shiv Sena Party chief, was appointed as a Chief of Maharashtra in November 2019. At the time, he was not a member of the State legislature. While it is constitutionally permissible for any person to hold ministership without being a member of the State Legislature, Article 164(4) makes it mandatory for him/her to be elected to either Houses of the State Legislature within six months of ministerial appointment. Thackeray’s deadline was May 2020.
Due to COVID-19, the EC has postponed by-elections that would have otherwise secured Thackeray’s Chief Ministership. The only option left for Thackeray now is to get nominated to the State’s Legislative Council. Two weeks ago, the Maharashtra State Cabinet made this recommendation to the Governor. But the Governor B.K. Koshiyari has not moved on this. The Shiv Sena alleges that Koshiyari’s proximity to its political rival BJP is the cause for this.
1.The Nomination route
A situation in which an individual who is not a member of the legislature becomes chief executive of the government is in itself fairly common. H D Deve Gowda was not a Member of Parliament when he was appointed Prime Minister in June 1996. Sushil Kumar Shinde and Prithviraj Chavan were not members of the Maharashtra legislature when they became Chief Minister in 2003 and 2010 respectively. Thackeray is likely to have had no problems becoming a member of the legislature had the pandemic not hit.
The nomination route for non-member Ministers is less common — but not unconstitutional. In 1952, C Rajagopalachari was nominated as Chief Minister of Madras by Governor Sri Prakasa. In Maharashtra, Datta Meghe and Dayanand Mhaske were nominated to the Vidhan Parishad by the Governor after being appointed Ministers.
The constitutional question at play here is: can the governor exercise his or her discretion independent in his/her capacity to nominate members to the State Legislative Council? Is he bound by the State Cabinet’s recommendation?
2.The question of discretion ?
Article 171 of the Constitution of India, 1950 gives the State Governor the power to nominate members to the Legislative Council. Such nominated persons should have special expertise or practical experience in ‘literature, science, art, co-operative movement or social service’.
What are the limits to the Governor’s discretion in nominations?
In Biman Chandra Bose vs Dr H C Mukherjee (1952) the Calcutta High Court rejected the plea that none of the nine nominated members to the legislature fulfilled the required criteria, and held that the Governor cannot use his discretion in nominating members to the Council. He has to go by the aid and advice of the Council of Ministers.Article 163(1) of the Constitution makes it clear that the Governor must follow the recommendations of the Council of Ministers in all situations “except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion”.
Also, the Constitution specifically mentions the situations in which the Governor can act in his discretion, e.g., Article 239 (Administration of Union Territories), Article 371 (Special provision with respect to the States of Maharashtra and Gujarat), Article 371A (Nagaland), Article 371H (Arunachal Pradesh), and in the Sixth Schedule (Provisions as to the Administration of Tribal Areas in Assam, Meghalaya, Tripura and Mizoram), etc.
In Hargovind Pant vs Dr Raghukul Tilak & Ors (1979), the Supreme Court held that the Governor is not an employee of the central government. He is neither under its control nor accountable to it, and is an independent constitutional office.
Another constitutional provision that crafts the relationship between the State Executive and the Governor is Article 163. It puts forth how the Governor is required to discharge all his functions under the Constitution. It notes that generally he/she should act as per the aid and advise of the Council of Ministers including the Chief Minister. However, it carves out an exception that allows the Governor to act solely based on his/her will: The provisions in the Constitution must specifically mention such use of discretion. One such example includes Article 239. which deals with Administration of Union Territories. This article explicitly states that the Governor ‘shall exercise his functions as such administrator independently of his Council of Ministers’.
Based on Biman Chandra Bose and the reading of Article 171, one can argue that the Constitution did not confer the Governor an independent ability to choose nominees to the State Legislature. This function can only be discharged based on the State Executive’s recommendation.
The Maharashtra episode is yet another tale of the office of the Governor (generally considered to be an apolitical office) being transformed into a cite of political controversy.
sources of Information :