In political science, a constitutional crisis is a fundamental problem in the state-functioning that the constitution is unable to resolve.
A constitutional crisis had emerged in Maharashtra when the Election Commission postponed all elections including those to the Rajya Sabha, all byelections and civic body elections in the wake of COVID- 19 pandemic.
The Constitutional Crisis was primarily due to the fact that Maharashtra CM Uddhav Thackeray took the oath of his office on November 28, 2019, without being a member of either the State Legislature or Council.
Constitutional and Legal Provisions
- Article 164 (4) of the Constitution states that any minister who “for any period of six consecutive months is not a member of the Legislature of the state shall at the expiration of that period cease to be a minister”.
- Becoming a member means a member of either the state assembly or the Legislative Council within a period of six months of assumption of charge as Minister.
- This would have been possible for Uddhav Thackeray if the elections to legislative council were held as per schedule on March 26th.
- The Election Commission used its powers under Article 324 of the Constitution, along with Section 153 of the Representation of the People Act, 1951 to indefinitely postpone the elections due to the spread of COVID-19 pandemic.
- If the election or nomination could not be carried out within six months, the alternative option was to resign at the end of the period and re-take the oath immediately afterwards.
- But the Supreme Court in S R Chaudhuri vs State of Punjab (2001) had ruled that “it would be subverting the Constitution to permit an individual, who is not a member of the Legislature, to be appointed a Minister repeatedly for a term of ‘six consecutive months’, without him getting himself elected in the meanwhile.” Thus, a double application of 164 (4) was ruled out.
The Nomination Route
On April 9, the Maharashtra Cabinet had recommended to Governor Bhagat Singh Koshyari that Chief Minister Uddhav Thackeray should be nominated to one of the seats reserved for the Governor’s nominee in the state Legislative Council. But the Governor had not acted upon the advice for more than a fortnight perpetuating a constitutional crisis, even when the recommendation was repeated by the government on April 27.
Under Article 171(5), the Governor can nominate “persons having special knowledge or practical experience in respect of. literature, science, art, co-operative movement, and social service.”
The interpretation of the word ‘social service’ has given it a wide meaning in this regard. The Allahabad High Court has ruled in Har Sharan Varma vs Chandra Bhan Gupta And Others (February 15, 1961), that even politics can be seen as ‘social service’.
Role of the Governor
Two Legislative Council seats in the Governor’s quota were vacant. Section 151A of Representation of the People Act 1951 prohibits the filling of a vacancy if “the remainder of the term of a member concerning a vacancy is less than one year”. The tenure of the two vacancies that arose on the account of resignations by members recently ends in June and hence the remainder of the term is less than a year.
However, this bar is in respect of by-election to fill a vacancy and not a nomination. Hence the nomination cannot be refused because of this reason.
- Article 163(1) of the Constitution makes it clear that the Governor must follow the recommendations of the Council of Ministers in all situations except those in which he is required to act in his discretion under the Constitution.
- The Constitution specifically mentions the situations in which the Governor can act in his discretion, like
- Article 239 (Administration of Union Territories),
- Article 371 and Article 371A (Special provisions for the States of Maharashtra and Gujarat, Nagaland),
- Sixth Schedule (Provisions as to the Administration of Tribal Areas in Assam, Meghalaya, Tripura, and Mizoram), etc.
- In Biman Chandra Bose vs Dr. H C Mukherjee (1952) the Calcutta High Court held that the Governor cannot use his discretion in nominating members to the Council.
- The general discretion of the Governor in appointing the Chief Minister is also bound by well-established conventions.
- Even the Governor’s pardoning powers are to be exercised on the aid and advice of the Council of Ministers.
Averting the Constitutional Crisis in Maharashtra
With the Prime Minister’s intervention, the Election Commission announced polls to nine legislative council seats in Maharashtra.
Uddhav Thackeray became a Member of the Maharashtra Legislative Council after he was elected unopposed in the election.
These events need to be seen in the extraordinary context caused by COVID-19 spread. India is facing one of its biggest health crises and the state of Maharashtra is the worst affected due to the highest caseload and death tolls. Political uncertainty or a leadership vacuum will make the health crisis out of control.
The Election Commission has taken an onerous task by holding an election in the middle of the pandemic.
The risks were commensurate with the rewards as Maharashtra cannot afford any sort of political uncertainty at this moment.
There are upcoming Assembly elections for Bihar, West Bengal, Assam, Kerala, Tamil Nadu and Puducherry which is due to be held within one year.
The EC can postpone elections to the Lok Sabha and State Legislative Assemblies for a period of only six months as the Constitution under Article 85(1) and Article 174(1) has set the limit between two sessions of the House or Legislative Assembly respectively.
The EC can draw inspiration from South Korea which held a national election during the coronavirus epidemic, maintaining all precautionary measures.
Probable Question from this topic
Question) In the context of the Constitutional Crisis in Maharashtra (2020), discuss the significance of Article 164 (4) of the Constitution and Section 151A of Representation of the People Act 1951.
(Answer in 250 words, 15 marks). Go to AWP 12 to answer this question.
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