Topics Covered: Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.
Article 164(4) of the Indian Constitution
What to study?
For Prelims: Overview of Articles 164 and 171, Section 151A of RPA.
For Mains: Options before the incumbent CM and legal hurdles.
What’s the issue?
Maharashtra CM Uddhav Thackeray may end up losing his seat if he is not elected to the Legislative Council of the state before May 24th.
- He took the oath of his office on November 28, 2019 without being a member of either the State legislature or council.
- But, he will have to get elected to either of the houses of the state legislature before May 24, as Article 164(4) of the Constitution stipulates.
- However, the Election Commission has already postponed Rajya Sabha polls, byelections and civic body elections in the wake of Covid 19 pandemic.
What does the Constitution say?
Article 164 of the Constitution allows a non-legislator to occupy a post in the council of ministers, including the office of the chief minister for six months.
What’s the alternative available now?
Article 171 of the Constitution says the governor can nominate eminent persons from the field for literature, science, art, cooperative movement and social service.
Uddahv Thackeray does not directly fit into any of the criteria mentioned but social service has a wider scope. And, if governor nominates somebody to the legislative council, his/her decision cannot be challenged in the court, at least as of the precedent right now.
The Maharashtra legislative council has two vacancies to be filled by governor’s nominations.
Then, what is the problem now?
There are some legal hurdles.
Section 151A of Representation of the People Act 1951 puts a bar on the governor’s discretionary power to nominate a person to the legislative council.
It says election or nomination to vacant seats in the legislative council cannot be done “if the remainder of the term of a member in relation to 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. So, the remainder of the term is less than a year.
So, what next?
Uddhav Thackeray cannot continue unless elected to any of the houses of Maharashtra legislature after May 28.
Technically, he can be reappointed as the Maharashtra chief minister again after he resigns on May 27 or 28 and takes oath afresh.
But, if Uddhav decides to resign and takes oath afresh, there could be another obstacle. This relates to a case in Punjab, where Tej Parkash Singh of the Congress was appointed a minister in 1995 and was reappointed at the expiry of six months’ period in 1996 without getting elected to state assembly.
Litigation followed. And, in 2001, the Supreme Court declared the resign-and-reappoint bid as “improper, undemocratic, invalid and unconstitutional”.
This judgment did not have a bearing on Tej Parkash Singh but may come in the way of Uddav Thackeray if he takes the same route.
- How are MLCs elected?
- How many members can be nominated by the governor?
- Can a person become a minister without being a member of the legislature?
- What does section 151A of RPA say in this?
- Can governor’s decision wrt Article 164(4) be questioned in the Court of law?
Sources: Indian Express.