THE PRESENT CRISIS OF NOMINATION
Uddhav 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. The coalition has the majority in the House. 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. If he is unable to do so “he ceases to be a minister”.
There were two options for Uddhav 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 Uddhav Thackeray to the Legislative Council. It’s a both a perfectly constitutional and legitimate demand. Article 171 of the Constitution only 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.” Given his long association in public life and the extensive social and economic organizations and trade unions under the wings of the Shiv Sena, the party Uddhav Thackeray heads, controls and directs, he definitely is entitled to be nominated.
UDDHAV THACKERAY AND THE CHALLENGING DEMOGRAPHICS OF MUMBAI AND MAHARASHTRA
In this age of the most unprecedented pandemic, Uddhav Thackeray has emerged as a fore runner in control of the pandemic. It became the first state in India to announce a locked down on March 24, 2020 and a slew of measures taken the Chief Minister enjoys the confidence of the house and enjoys the good faith of the people of Maharashtra. In the wake of this pandemic, the Chief Minister has setup 163 centers to take care of the millions of migrant labour and has allocated 43 crore rupees. The CM has commence converting tertiary care GT Hospital and St. Georges hospital into Covid 19 facilites on the lines of the Nair Hospital. The Chief Minister enjoys the confidence of the house. And with his calm and composed nature and the quick responses, he enjoys the full confidence and the good faith of the people of Maharashtra.
For those unfamiliar with Mumbai, the sheer scale of demographics of city is an administrator’s nightmare. There are no parallels in urban administrative challenges on this planet. Mumbai has a population of 20 million people housed in 603 km². Migrants constitute over 37% of its population. About 9 million workers moved to Mumbai between 2011 and 2016 itself. Today, nearly 5.2 million people live in slums, and the number is still increasing. Nearly one million people live in Dharavi, a 2.1 sq km cluster of slums. Mumbai is the financial capital of India. Maharashtra contributes 25% of the country’s industrial output and 23.2% of its Gross Domestic Product.
THE GOVERNOR, DEVIATING FROM AN IMPARTIAL CONSTITUTIONAL AUTHORITY
In the midst of this gargantuan pandemic problem, there is fear of a constitutional chicanery is at work to destabilize the government of Uddhav Thackeray. Its 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. There is fear of an attempt to prevent/procrastinate the nomination going through. That’s how perhaps politics works.
But that’s not the way the Constitution ought to work. The Governor is not a party spokesman. He is a constitutional authority. He has to act according to the constitution and when the Constitution is not explicit then go by the conventions. There is no justifiable reason for this inaction on the part of the Governor. And given this situation of an unbridled and uncharted pandemic and the herculean steps being taken by the government to stem it, a political uncertainty created by constitutional chicanery is both morally and constitutionally unacceptable.
GOVERNOR HAS TO GO BY THE ADVICE OF THE CABINET
What does the Governor do in a situation of this nature? It is absolutely clear that the Governor has to act by the advice of his ministers. Even the Government of India Act, 1915, as amended by the Act of 1919 was explicit. Section 52(3) read as follows:
“In relation to the transferred subjects, the Governor shall be guided by the advice of his Ministers, unless he sees sufficient cause to dissent from their opinion, in which case he may require action to be taken otherwise than in accordance with that advice:”
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).
There is a logic to the governor going by the advice of his Council of ministers. That logic is contained in article 164 (2) which provides that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the state. The Governor as a figurehead is not accountable to the Assembly. This is where the ultimate guide to the operation and functioning of a democratic system lies.
LESSONS FROM WINSTON CHURCHILL’S WAR CABINET
History has lessons. In the midst of extreme crisis, parliamentary democracies have rallied around nonpartisan cooperation to meet the enemy. A classic instance is the War Cabinet of Great Britain when it had to face the gravest challenge of its existence, the Nazi onslaught. Winston Churchill, headed a coalition and formed the five-man coalition War Cabinet and operated from 10 May 1940 till 23 May 1945. The War Cabinet (like Thackeray’s present coalition) was a coalition of parties and included Chamberlain (Conservative) , Clement Attlee (Labour), Viscount Halifax (Conservative) and Arthur Greenwood (Labour). The War Cabinet guided the battle in Asia, Africa and Europe) for 5 long years through the World War II till the Allied forces entered victorious in Germany.
There is a moral in the tale. In times of war or in times of grave danger faced by the nation, partisan politics ought to give way to the larger purpose.
GOVERNOR IS A CREATURE OF THE CONSTITUTION AND NOT A PARTY SPOKESMAN
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”.
MAHATMA GANDHI: GOVERNOR AS AN IMPARTIAL ARBITER
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.
WHAT AMBEDKAR SAID AND HOPED
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. But in his unarticulated silence and his dedicated devotion to constitutional means of governance, we can be sure on thing. He certainly would been sure constitutional fair play would be aopted to persons placed in the situation Uddhav Thackeray is in, to be legitimately and fairly nominated as per the Constitution.
WHY THE GOVERNOR HAS NO OPTION BUT TO NOMINATE UDDHAV THACKERAY
We are faced with the peculiar problem of the Maharashtra MLC elections getting postponed and thereby the opportunity of Uddhav Thackeray to get elected becoming impossible within the designated time frame. No fault can be found with the CM. He is qualified under Article 171 of the Constitution. The CM has been recommended by the Council of Ministers to be appointed as a member of the Legislative Council. The Constitution mandates that the Governor must act on the advice of his Council of Ministers.
The Governor Bhagat Singh Koshyari is bound to act in accordance with the constitutional mandate and nominate Uddhav Thackeray who enjoys the confidence of the house to facilitate and continue democratic governance in the state.
DISCLAIMER : Views expressed above are the author’s own.