A constitutional predicament is unfolding in Maharashtra, causing concerns over the standing of the incumbent Chief Minister. The issue emerges from the intricacies of both state and national laws and their peculiar execution in this specific case.
Delving into the Problem
The currently serving Chief Minister assumed office on November 28, 2019. Notably, he did so without being a member of either the State legislature or council. As per Article 164(4) of the Constitution, a person can become a Minister even if he or she isn’t an active member of either House of State legislature, but only for a six-month duration following the date of the oath. Therefore, in this case, the final permissible date to secure membership in either House was May 24, 2020.
Covid-19 Impact: Elections Postponed
In an unforeseen turn of events, all elections have been indefinitely postponed by the Election Commission as part of nationwide measures to thwart the spread of the coronavirus. This delay has added a layer of complication to the already complex situation.
Cabinet Recommendation and Pending Decision
In light of these issues, on April 9, 2020, the state cabinet put forth a recommendation that the current Chief Minister be named to the Legislative Council under the Governor’s quota. According to Article 171 of the Constitution, a Governor has the power to nominate members to the Legislative Council. These nominated individuals must possess special knowledge or practical experience in fields such as literature, science, art, the cooperative movement, or social service. Yet, the Governor has not made known any decision on this matter, which has led to growing apprehension around the Chief Minister’s post held by Uddhav Thackeray.
Legal Complications Around Nomination
Another legal problem concerns Thackeray’s potential nomination to the Legislative Council on the available seats. Section 151A of Representation of the People Act 1951 contends that a nomination can’t be made if the remaining term of a member, in relation to a vacancy, is less than one year. Two vacancies presently exist in the Council, with their terms ending on June 6, 2020. Consequently, the term of these two vacancies is less than a year.
Question of Bypolls
According to established rules, the time limit for a bypoll to fill vacancies is six months from the date the vacancy arises. However, this rule will not apply if the rest of a member’s term regarding a vacancy is less than one year, or if the Election Commission – in consultation with the Central Government – certifies that conducting the by-election within the said period is challenging.
Sources
This report used information sourced from IE. As the situation unfolds, it’s clear that a unique intersection of law and circumstance has placed Maharashtra’s political future in a state of uncertainty.
