Recently, the country has witnessed the interesting constitutional upheavals in Maharashtra and tug of war with the Governor, which ultimately reached the Supreme Court for a constitutional adjudication. Yet another interesting legal issue is fast evolving in the light of the Governor in not taking any action on the recommendation of the cabinet.
Udhav Thackeray took oath on 28th of November, 2019 as the Chief Minister of Maharashtra. He is heading the 3 party coalition of NCP, Congress and Shiv Sena called Maha Vikas Aghadi. He completes 6 months in office on the 28th May this year. As a non-legislator Chief Minister, he is entitled to occupy his office for a period of 6 months, he is thus under a constitutional mandate to get himself elected and if not, "he ceases to be a minister".
There were two options for Udav Thackeray. First by 28th of May, 2020 he has to become a Member of the Legislative Assembly (MLA) or the second option is to become a Member Legislative Council (MLC). The elections to the 9 seats for MLC was to be held on 26th March got postponed indefinitely due to the Covid 19 pandemic.
In view of the unprecedented postponement of MLC elections, the State Cabinet of Maharashtra on 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. Article 171 of the Constitution requires that "Persons having special knowledge or practical experience in respect of such matters as the following, namely: literature, science, art, cooperative movement and social service."
What does the Governor do in a situation of this nature?
Prior to the Constitution (42nd Amendment) Act, 1976, under the constitutional convention, the President (similarly placed like a Governor at the Center) was bound to act in accordance with the advice of the Council of Ministers (Re: Shamsher Singh v. State of Punjab). By the 42nd Amendment, it was expressly so provided in Article 74(1). As per article 164 (2) the Council of Ministers shall be collectively responsible to the Legislative Assembly of the state, while the Governor being a figurehead is not accountable to the Assembly, hence is bound by the advice.
It has been almost three weeks since the cabinet's decision to nominate Uddhav Thackeray was conveyed to the Governor. There is a strange but a predictable silence on the part of the Governor, as we have seen in the recent conflicts in various states , the Governor's High Office is not the constitutionally neutral umpire bt ended up as instrument of party politics.
The constitution does not envisage the office Governor involving in party politics being a constitutional office. He has to act according to the constitution and when the Constitution is not explicit then go by the conventions.
Governor, The Constituent Assembly
The Governor's role has been a vexed affair from the time of framing of the Constitution. It was feared that his role would be used in myriad ways to subvert or sabotage the democratic process. The Governor's appointment and his role was subject to a contentious debate in the Constituent Assembly. There were members like Rohini Kumar Chaudhury who were alive to the dangers of the role played by Governors under the colonial regime.
During the debates in the Constituent Assembly there was a vociferous section which demanded that the membership to the Council of Ministers should be restricted to the members of the legislature. They objected to appointment of outsiders in the Council of ministers. Dr B.R. Ambedkar's contemplated one of the situations and his observations as usual illuminates the constitutional path to be followed:
"It is perfectly possible to imagine that a person who is otherwise competent to hold the post of Minister has been defeated in a constituency for some reason which, although it may be perfectly good, might have annoyed the constituency and he might have incurred the displeasure of that particular constituency. It is not a reason why a member so competent on that should not be permitted to be appointed as member of the Cabinet on the assumption that he shall be able to get himself elected either from the same constituency or from another constituency. After all, a privilege that is permitted is a privilege that extends only for 6 months. It does not confer a right to that individual to sit in the house without being elected at all. "[Constituent assembly debates]
Though Ambedkar did not elaborate every situation where non legislators could become part of the Cabinet, in his unarticulated silence he hoped and was sure that a fair opportunity would to the person concerned to get elected/nominated as per the Constitution.
The Governor is a key actor in the Centre-State relations. He is the bridge between the Union and the State. The founding fathers deliberately avoided election to the office of the Governor, to insulate the office from linguistic or regional chauvinism. Under Article 159, the Governor shall discharge his functions in accordance with the oath "to protect and defend the Constitution and the law". When a Gandhian economist member of the Constituent Assembly wrote a letter to Gandhiji of his plea for abolition of the office of the Governor, Gandhiji wrote to him for its retention, thus:
"The Governor had been given a very useful and necessary place in the scheme of the team. He would be an arbiter when there was a constitutional deadlock in the State and he would be able to play an impartial role. There would be administrative mechanism through which the constitutional crises would be resolved in the State."
This is not just a pious wish, but the very centrifugal force of trust between the Center and the State. We are faced with the peculiar problem of the Maharashtra MLC elections getting postponed and the Governor not acting as per recommendation, a constitutional crisis is in the offing.
Views are personal
Author is a Senior Supreme Court Lawyer