By Mayur Kulkarni
At a time when the State of Maharashtra struggles to fight against the coronavirus pandemic, a constitutional crisis looms over Chief Minister Uddhav Thackeray, potentially forcing him to resign from his position. On November 28, 2019 Uddhav Thackeray took oath as the Chief Minister, as the leader of the Maha Vikas Aghadi, an alliance formed between Shiv Sena, Indian National Congress and Nationalist Congress Party. However, Uddhav Thackeray not being the member of either houses of the State Legislature has sparked the current crisis.
Article 164(4) of the Indian Constitution mandates that a person who is not a member of the state legislature can be a minister only for a term not exceeding six months. In this case, the six month period would expire on 24 May 2020. However, the Election Commission has postponed all the elections because of Covid-19. Therefore, the state’s Cabinet on 09th April 2020, recommended to the Governor that Mr. Thackeray be nominated to the Legislative Council under the Governor’s quota pursuant to Article 171(5) of the Constitution. However, such a recommendation and the reluctance of the Governor to approve the nomination have opened up serious constitutional questions.
Issue of Necessary Qualifications for Nomination
Article 171(5) allows the Governor to nominate to the Legislative Council persons having special knowledge and practical experience in the fields of literature, art, science, co-operative movement and social service. The considerations before the Governor while nominating Mr. Thackeray include his qualification to be nominated under Article 171(5). In Vidyasagar Singh v. Krishna Ballabha Sahay, the Patna High Court ruled that the qualification of the nominated persons under Article 171(5) was a ‘question of fact’ and the Court cannot be called upon to decide on it. Here, the Court effectively ruled that the decision of the Governor taken on the recommendation of the Council of Ministers was to be final in this matter.
However, on the contrary the courts in the past have factually appraised whether the person nominated possess the required qualifications under Article 171 also. In Har Sharan Varma v. Chandra Bhan Gupta, the petitioner while challenging the nomination of the respondent argued that the respondent did not have ‘special knowledge’ or ‘practical experience’ in the fields prescribed under Article 171. In light of this argument, the Allahabad High Court took note of the previous political positions held by the respondent and concluded that, as the respondent had had a long political career before being nominated, it cannot be said that he lacks ‘practical experience’ in social service. Here the court can be seen to have laid down two principles. Firstly, that the courts can factually appraise whether the person nominated or to be nominated possessed the necessary qualifications under Article 171. Secondly, the Court treated political experience as ‘practical experience’ in the field of social service.
Seen in this light, Mr. Uddhav Thackeray’s previous political experience which is limited to serving as the President of his political party, Shiv Sena, qualifies as ‘practical experience’ of social service is a question that begs consideration before approving the nomination. Also, Mr. Thackeray, an amateur photographer and author of two photo-books can be considered under the ‘art’ category is also worth considering at this stage.
Issues under the Representation of the People Act, 1951
Primarily, there are two issues that are to be considered under the Representation of People Act. Firstly, Section 154(3) provides that when a member is chosen to fill the vacancy she shall be chosen to serve only for the reminder of the predecessor’s term. This provision read with the proviso to Section 151A of The Representation of the People Act lays down that a vacant seat may not be filled if the remainder of the term of the member in relation to a vacancy is less than one year. In the case of Uddhav Thackeray, the MLC seats fell vacant in November, 2019 and the term of those members was to end in June, 2020, which clearly shows that the remainder of the term is less than a year. If this situation is seen in light of the Bombay High Court ruling in Sandeep Yashwantrao Sarode v. Election Commission of India, wherein the Court ruling with regards to the Election Commission held that holding elections as a result of which the returning candidate would have a very short of less than five months in office because of the operation of Section 154(3) is illegal, unreasonable and arbitrary. The proper course to be adopted is to leave the seat vacant which would later get filled after the general elections in the normal course.
As pointed out earlier, Mr. Thackeray after the nomination would have a very short term depending on when the Governor approves his nomination. Therefore, if the ruling in Sandeep Yeshwantrao is applied to the nomination of Mr. Thackeray such nomination would in all probability be unreasonable, arbitrary and illegal.
It is abundantly clear that Mr. Thackeray would continue as the Chief Minister if he gets nominated. Such a situation would grossly undermine the democratic values guaranteed under the Constitution. A Chief Minister holding office by virtue of the nomination effectively made by her own Cabinet through the office of Governor would go against the idea of popularly elected representative form of government envisaged by the Constitution.
On the other hand, if the Governor would not nominate Mr. Thackeray, it would leave no other option for him but to resign. Given the emergency health situation prevailing in the state, such a situation could prove disastrous for both general welfare and relief efforts in the state. Hence, this whole episode coupled with the Covid-19 situation has posed a very peculiar problem before the Governor. As the Bombay High Court has also adjourned the matter refusing to interfere with the thought process of the Governor, it remains to be seen what steps the Governor would take and it is pertinent to note that there may be consequences on both the state administration, and Mr. Thackeray in particular.
The author is a second year B.Com LLB Student, pursuing their degree from the Gujarat National Law University, Gandhinagar.
 India Today, Uddhav Thackeray, first of his clan, takes oath as chief minister of Maharashtra, (November 28, 2019, 03:52 PM), https://www.indiatoday.in/india/story/uddhav-thackeray-maharashtra-chief-minister-1623468-2019-11-28.
 India Const. art. 164 (4).
 The Hindu, Maharashtra Cabinet recommends Uddhav’s name to Governor for MLC post, (April 09, 2020, 02:16 PM), https://www.thehindu.com/news/cities/mumbai/maharashtra-cabinet-recommends-uddhav-thackerays-name-to-governor-for-mlc-post/article31296954.ece.
 India Const. art. 171(5).
 Vidyasagar Singh v. Krishna Ballabha Sahay, AIR 1965 Pat 321.
 Har Sharan Varma v. Chandra Bhan Gupta, AIR 1962 All 301.
 §154(3), The Representation of People Act, 1951 (India).
 §151A, The Representation of People Act, 1951 (India).
 Sandeep Yashwantrao Sarode v. Election Commission of India, 2019 SCC OnLine Bom 629.
 Mumbai Mirror, Uddhav Thackeray MLC recommendation: Bombay HC refused to grant interim relief in a plea filed by a BJP worker, (April 20, 2020, 6:11 PM) https://mumbaimirror.indiatimes.com/mumbai/other/uddhav-thackeray-mlc-recommendation-bombay-hc-refused-to-grant-interim-relief-in-a-plea-filed-by-a-bjp-worker/articleshow/75252536.cms.