• Maharashtra CM is yet to be nominated to one of the seats reserved for the Governor’s nominee in the state Legislative Council.
• His current term in office approaches its end with a looming constitutional crisis.

The discretionary powers of the governor have been subjected to various debates this year. Be it Karnataka, Maharashtra, MP or erstwhile J&K (under Lt. Governor) or the UT of Delhi.

CM without Election

• Maha CM took oath in accordance with Article 164(4).
• The article states that 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.
• It follows that the Chief Minister must become part of the legislature before the said expiration of 6 months.

Governors dilemma

• 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.
• But with the pandemic raging, a by-election cannot be held.
• The only way to fulfil the requirement, therefore, is for a person to be nominated to the Upper House by the Governor.
• If that does not happen, the Governor is obligated to make way for someone else to lead the coalition govt.
• CM Uddhav Thackeray is likely to have had no problems becoming a member of the legislature had the pandemic not hit.

What does the Judiciary have to say?

• In S R Chaudhuri vs State of Punjab and Ors (2001), the Supreme Court had ruled that it would be subverting the Constitution to permit an individual, who is not a member of the Legislature.
• Such a person should not be appointed a Minister repeatedly for a term of ‘six consecutive months’, without him getting himself elected in the meanwhile.
• The practice would be clearly derogatory to the constitutional scheme, improper, undemocratic and invalid.

Testing the nomination route

• The nomination route for non-member Ministers is less common — but not unconstitutional.
• In 1952, C Rajagopalachari was nominated as CM of Madras by Governor Sri Prakasa.
• Under Article 171(5), the Governor can nominate “persons having special knowledge or practical experience in respect of. literature, science, art, co-operative movement and social service”.
• Last month, the President nominated former Chief Justice of India Ranjan Gogoi to Rajya Sabha even though there were doubts about him meeting these prescribed qualifications.
• Thackeray can be said to have a stronger claim in this regard — he is an ace wildlife photographer.
• Moreover, as per the Allahabad High Court in Har Sharan Varma vs Chandra Bhan Gupta And Ors (February 15, 1961), even politics can be seen as ‘social service’.

The role of the Governor

• It has been argued that Section 151A of The Representation of the People Act, 1951, prohibits the filling of a vacancy if “the remainder of the term of a member in relation to a vacancy is less than one year”.
• However, this cannot be a reason for the Governor to refuse nomination — because the bar is in respect of by-election to fill a vacancy, not nomination.
• Of course, the Governor could argue that he is not obligated under the Constitution to act swiftly on the advice of the Council of Ministers; also, why should he nominate Thackeray only to save his chief ministership.

A new issue for debate

• It is important to note the extraordinary context — India is currently battling a health emergency of the kind not seen in the history of the republic.
• Political uncertainty is the last thing that Maharashtra, which has the highest coronavirus caseload and death toll by far in the country, needs at this moment.

The question of discretion

• What are the limits to the Governor’s discretion in nominations is the matter of discussion now.
• In Biman Chandra Bose vs Dr H C Mukherjee (1952) the Calcutta HC 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”.

Case in Maharashtra

• It can be argued that government is bound by the advice of the CoM only in executive matters as defined in Article 162 and since the nomination of members is not an executive power, he can act in his discretion.
• However, it must be noted that under Article 169, while Parliament has the power to abolish or create a Legislative Council, it can pass such a law only after the state Assembly has passed a resolution to that effect.
• Thus, the legislative power of the Assembly can be inferred from this provision.

Also read:

Role of Governor in State govt. formation

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