Q. Six months old Maharashtra government led by Uddhav Thakre as chief minister are about to be over. An unprecedented situation may arise: The constitution mandates that a person can become minister even if he is a member of the state legislature but he must become such member within 6 months of entering into the office of minister. In other words, he or she will cease to be minister on expiry of 6 months from the date of his entering into the office of minister.
Now that the Election commission has postponed the bye elections due the lockdown, what constitutional remedy does Mr. Uddhav have?
Ans: If the seat of chief minister falls vacant due to operation of the article 164 (4): The said article expressly signifies that A minister, who for any period of 6 consecutive months is not a member of the legislature the state shall at the expiration of that period cease to be minister. If this happens in case of Mr. Udhav then entire government shall fall because he not just a minister but chief minister.
Option 1: Since the alliance of the Shiv Sena and NCP enjoys majority, the governor will have to reappoint Mr. Udhav as chief minister and other ministers on his advice. It may be noted that at the time of appointing the chief minister, the governor has discretionary power. So he may refuse to do so on the ground that the intent of Article 164(4) will be frustrated. Giving the same person a fresh lease of ministership will amount to contravention of an express provision of the constitution. It won’t be less than a fraud upon the constitution because what cannot be done directly cannot be done indirectly either. So the governor shall be in within his competence to refuse to reappoint Mr. Udhav as chief minister. Therefore it is advisable that the alliance chooses another person who is a member of the state legislature. Mr. Udhav may make a comeback after he becomes member of the state legislature.
Option 2: Maharshtra has bicameral legislature. It consists of the legislative assembly as well as legislative council. According to Article 171(3)(e ” the remainder shall be nominated by the Governor in accordance with the provisions of clause ( 5 )”
And clause 5 says, ” The members to be nominated by the Governor under sub-clause (e) of clause (3) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely:— Literature, science, art, co-operative movement and social service”.
The governor may nominate Mr. Udhav to the legislative council considering him to be a person having practical experience in respect of Literature. It is pertinent to note that Mr. Udhav has served as editor of a daily newspaper Saamna from 2006 to 2019.
If the governor chooses to exercise his power under Article 171(3)(e) then Mr. Udhav shall continue as chief minister of Maharashtra without any impediment. It may be noted that the power of the governor under Article 171 (3)(e) is his legislative power and therefore it falls within his discretionary jurisdiction. But discretionary power cannot be exercised in an arbitrary manner. The power should be exercised to facilitate the smooth functioning of the government and not for obstructing it. It should be exercised for the purpose of giving effect to the provisions of the constitution.
Now let us explore whether Article 160 can be applied in the given situation or not.
Article 160: ” Discharge of the functions of the Governor in certain contingencies: The President may make such provision as he thinks fit for the discharge of the functions of the Governor of a State in any contingency not provided for in this Chapter”.
Is this situation a contingency NOT PROVIDED for in this chapter?
The answer is no. Article 164(4) is a provision in this chapter and it expressly bars a person from holding on to the seat of minister if he doesn’t fulfill the condition laid down in the said Article. So this is not a contingency not provided for in this chapter.
Another question is that whether Article 356 can be applied in the given situation or not?
Again the answer is no. We cannot say that this is a situation in which the government of the state cannot be carried on in accordance with the provisions of the constitution. The best ethical solution in consonance with constitutional morality would be to appoint another person, who is member of the state legislature, as chief minister. The mandate of the constitution is unambiguous: That a person shall cease to be minister if he doesn’t become member of the state legislature within 6 months of his appointment as minister.
(Note: There is no bar if the other person, so appointed, is also not an existing member of the state legislature. This will not be according to the ethos of the constitution but there is prohibition, express or implied)
On the whole we come to the inference that the best step, on the part of the ruling party, would be to propose a suitable replacement of Mr. Udhav Thackrey. Option 2 is feasible but it is only a matter of coincidence that Mr. Udhav Thackrey has practical experience in the field of literature. Hence the option 2 cannot be a resorted to as a general resolution of the given issue.