Constitutional Crisis in Maharashtra DeflectedBackground
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 with the Governor, which ultimately reached the Supreme Court for a constitutional adjudication.
Even as the dust settled on that controversy, there appeared to be another constitutional crisis on the horizon.
Udhav Thackeray took oath on the 28th of November, 2019 as the Chief Minister of Maharashtra. To date, he is neither a Member of the Legislative Council of the State (MLC) nor a Member of the Legislative Assembly (MLA). As a non-legislator Chief Minister, he is entitled to occupy his office for 6 months, and he is thus under a constitutional mandate to get himself elected and if not, "he ceases to be a minister". 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 were to be held on March 26. However, the same was postponed indefinitely by the Election Commission due to the COVID-19 pandemic. The MLA elections are already over. Because of the inevitable postponement of the MLC elections, the only surviving option for Thackeray was to get nominated to the Legislative Council.
Because of the unprecedented postponement of MLC elections, the State Cabinet of Maharashtra on the 9th of April 2020 recommended to the Governor to nominate Udhav Thackeray to the Legislative Council under Article 171, which was the only constitutional option available. Currently, there are two vacancies, resulting from two NCP legislators jumping ship to the BJP, which Thackeray can be nominated to.
Sub-clause (e) of clause (3) of Article 171 deals with the Governor's power to nominate members to the Legislative Councils. Clause (5) of Article 171 says nominations made shall "consist" of persons with special knowledge and experience in matters of literature, science, art, the co-operative movement, and social service. Maharashtra’s CM was said to have a stronger claim in this regard, he is an ace wildlife photographer and, as per the Allahabad High Court in Har Sharan Varma vs Chandra Bhan Gupta And Ors, even politics can be seen as social service.
However, for 3 weeks, no decision was taken and conveyed by the Governor. What followed after this was a series of political tensions and attacks over next week.
On 24th April 2020, in a veiled attack on the BJP, the ruling party at the Centre because of the pending approval of Maharashtra governor to nominate Chief Minister Uddhav Thackeray as an MLC, Shiv Sena leader Sanjay Raut in his weekly column "Rokhtok" published in the Sena mouthpiece ''Saamana'', stated, “For the last 60 years, political parties in the Centre have adopted the policy of weakening the states where their party is not in power. Late Prime Minister Indira Gandhi had dissolved governments in nine states where non-Congress parties were in power.” Raut said the constitutional post of governor has been misused for such work.
Subsequently, on 27th April, 2020, the Maharashtra state cabinet stepped up pressure on Governor Koshyari, after a cabinet meeting, chaired by Deputy Chief Minister Ajit Pawar again asking him to nominate Thackeray to the legislative council. The next day, a delegation of MVA leaders led by Pawar met the governor on Tuesday and handed over the cabinet decision's copy to him.
On 29th April, 2020, in his call to Prime Minister Modi, Maharashtra CM expressed his displeasure over the “politics being played” over his nomination to the Legislative Council. “The option (for council election) came up after the two leaders spoke,” said a senior Sena leader.
Following this, on April 30, two Sena leaders, party secretary Milind Narvekar, who was Thackeray's intermediary with Koshyari, and urban development minister Eknath Shinde met the Governor and handed him letters written to the EC by the three parties and also a letter by Thackeray requesting Governor to recommend the EC to hold elections to the council.
Immediately, the Governor Koshyari wrote to the ECI to conduct the elections for the nine vacant seats of the legislative assembly at the 'earliest'. In his letter, he said that the ground-level situation is contained and as of now appears to be improving with several relaxations being made by the Government. Hence keeping in view, the entire situation, the Election Commission was requested to consider working out modalities to hold elections.
The Final Answer
In what is being considered to be a great relief to the Thackeray-led coalition government as well as a close deflection of a possible Constitutional crisis, on April 1, 2020, the Election Commission of India (ECI) announced its decision to hold elections to nine vacant Maharashtra Legislative Council seats after receiving letters from the State Governor and the Chief Secretary regarding the feasibility of conducting the polls during the pandemic. The State government had assured the Election Commission that the elections will be held in totally hygienic conditions with social distancing norms and other imposed conditions. Now, Thackeray will have to win the elections to become a member of the council.
Commission also decided that the Union Home Secretary, who is Chairperson of National Executive Committee in ex-officio capacity under the Disaster Management Act, 2005, should depute an officer of suitable seniority to ensure that the preventive measures are put in place in keeping with the provisions of the said Act for the smooth conduct of the electoral process for the said election.
It has also directed the Chief Secretary to depute an officer from the State to ensure that the extant instructions regarding COVID-19 are complied with while making arrangements for conducting the elections. Further Commission has appointed Chief Electoral Officer, Maharashtra as Observer for this election.
In light of these recent events, the questions that remain possibly unanswered are if the Election Commission holds an election for council, the issue would be resolved, but what if it doesn't? Or what if it is legally challenged. Would the elections even be possible during a global pandemic? Hence, the possibility of a crisis is not yet over.
I BALLB, ILS Law College.