Unethical entry into the assembly: Why nomination in the assembly should not be opened as a gateway for politicians

With the advent of multi-party system, the office of Governor has assumed a significant role in two ways, first, for maintaining an efficient constitutional machinery in the state, and second, for acting as a link between the Centre and the States. In performing his duties, sometimes the actions of the Governor become the centre of controversy. One such controversy has arisen in the State of Maharashtra.

Mr. Uddhav Thackeray, the current Chief Minister of Maharashtra took oath on November 28, 2019. Article 164 of The Constitution of India allows the Governor to appoint the Chief Minister, in case he/she is not a member of the Legislature of the State, he/she has to get elected within 6 months from being appointed. Owing to this, Mr Thackeray will cease to be a CM on 29th May, 2020. Dr. BR Ambedkar had imperiously clarified that Article 164(4) which allows for additional six months for a minister to get elected, is only a matter of privilege and does not entail that he can stay without being elected at all. With the Covid-19 outbreak conditions, especially in Maharashtra, even MLC elections that were to be held on 26th March, seem a distant goal. The only way the ruling alliance sees for Mr. Thackeray to remain in his seat is through nomination to the council, under Article 171 of the Constitution, which entails a specific number of  distinguished members to be nominated from the field or art, literature, social work etc The Governor, under 171(3)(e) is bound to nominate members fulfilling the criterion under Article 171(5).

With the Maharashtra crisis in the background, this article will explain how nomination of a minister to the assembly under Article 171, solely for the purpose of gaining legitimacy under Article 164(4), is prone to defeat the purposes of both the Articles, leading to a dilution of their sanctity and paving a way for unethical practises in the future. This in turn casts a duty on the Governor to stop the commencement of this practice, and look for other constitutionally viable solutions. 

Nomination of ministers: Defeating the purpose of nomination

A new pathway for allowing the entry into council is being tried to be carved in Maharashtra using Article 171(3)(e) read with Article 171(5). The nomination of a minister, through this means has been discussed in detail in the case of Har Sharan v. Chandra Bhan, where the Court held that provision of nomination has not been made to provide a backdoor entry to ministers who fail to gather public support; nevertheless, if there is no illegality to the procedure, the Court cannot interfere in the decision of the Governor. The Court readily agreed that the intentions of 164(4) and 171(5) are not reconcilable, and were meant for very different purposes. However, this judgement of Allahabad High Court was delivered in 1961, and constitutional jurisprudence has changed to a great extent ever since. Therefore, blindly relying on the ratio which only takes into consideration illegality of procedure for reviewing the nomination by the Judiciary, will lead to creation of precedents that is going to harm the representative democracy in the years to come.

The intention of Article 171(5) is to include exceptional individuals from fields other than political arenas so as to provide a balancing unit inside the council. In the case of Ram Gopal Sisodia v. Union of India, it was stated that the nominated members are expected to take a broader view of the issues at hand, sometimes different to elected members, so as to provide them with an opportunity to identify different circumstances. The Constitution makers, aimed at providing an impartial set of individuals to the council, who can provide invaluable information to the House which elected members might not be able to garner. The main intention of incorporating this provision was to provide a balanced, third party view to the council equipped with expertise in their fields. It is not impossible, though hard to expect a party member serving as a minister or Chief Minister of any state to fulfil the legislative intent of this provision.

A minister has its own sets of duties and obligations, that stand contrary to those expected from nominated members. Note that nominated members do not possess equal capacities and obligations as elected members. For example, nominated members are not allowed to vote in the election of a president. A nominated member is also exempted from filing of assets and liabilities under the Representation of People’s Act, 1951, which all elected members are compelled to file within 90 days of oath.

Thus, if such gateway entry is allowed, it will lead to dilution of the importance of such nomination procedures, to the point where they might be completely hijacked as a backdoor entry to the assembly, leaving no scope of its true intent to be realised.

Circling the way through representative republic.

 In the case of S.R Chaudhari v. State of Punjab, the Supreme Court iterated the principle that the scheme of Article 164 compels a minister to return to the legislature through direct or indirect elections within a short period. India has seen instances of ministers being elected in the Legislative Council, or the State Legislative Council through indirect elections after not being able to emerge victorious in their constituency. This form of election, though deflected still follows the representative democracy since the elections are held indirectly.  Nominations under Article 80 to the Legislative Council or Article 171 to the State Legislative Council do not fall into the category of either direct or indirect elections. The purpose of election is to stamp the member with sufficient support needed for him to be authorized to carry on the tasks of being a minister. The main purpose of Article 164(4) is to grant an opportunity to the concerned minister to garner this support in some way, before continuing his/her duties as a minister. If nomination under the above-mentioned provisions are allowed, it will defeat the purpose for which Article 164(4) was originally incorporated into the Constitution, since it does not signify any support or authorization by the people.

Obligation of the governor: Not to open the backdoor

Having established the route of nomination as one that should not be taken, we come to the conclusion that Governor is the only link which needs to act as a checkpoint here. According to Article 163, the Governor has to act in “aid and advice” of the ministers, however, unlike the President, he is not bound by it. Article 163(1) states “there shall be a council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion”. The phrase “by or under this Constitution” has a wide import. If the discretion of a Governor is not expressly provided, the tenor or the context of the provision in question may show that the Governor has to apply his discretion. The legislative intent of the provision in 171(5) is to bring in people from different areas to provide help and expertise to the functioning of the House, which stand in distinction to that of other Assembly Members. They act like an objective lens, not tilted towards the ruling or the opposition members in the Assembly. The  Supreme Court in Shamsher Singh V. State of Punjab explained the limitations Article 163(1) poses on Governors, by providing the reasoning that it specifies a relationship of accountability of Council of Ministers through the Governor. However, nomination of Ministers and Chief Ministers is not a question of relationship between Governor and the former, but a question of constitutional scheme, which is bereft of a positive outcome for the executive. Since this form of nomination is unintended by the makers, and destroys the idea of representative democracy, it must not be looked upon as a legislative action to be controlled by the Council of Ministers, but as a discretionary executive action on which Governor could have some control. Therefore, the Governor should consider the constitutionality of such actions, and allow them only if they do not alter the state of democracy.

What needs to be done?

Due to the ongoing pandemic, the Maharashtra crisis is a unique circumstance. Therefore, the administration cannot function following all the set constitutional rules. However, the nomination of Mr. Thackeray should still not be an option as it will set a dangerous precedent in the upcoming times, especially when Governors are prone to be used by the Centre to create a constitutional crisis in the state. The spirit of Article 164(4), as iterated in many judgements, is essentially to remove any member who fails to gather support by not being able to get elected into either of the Houses. On the other hand, Mr. Thackeray, due to ongoing pandemic has been denied an opportunity to get elected to the House. Denial of opportunity should not be considered as a failure to gather support altogether under Article 164(4).

The legislative intent of the makers of the Constitution of India will not be disturbed if some additional months are granted to Mr. Thackeray for getting elected under Article 164(4), and the days of lockdown are not counted for this purpose. However, if the route of nomination is taken, it will essentially lead to disregarding the intents of both Article 164(4) as well as Article 171(5).

This article has been authored by Sumedha Tewari and Sandarbh Vikram Singh, second year students at National Law University, Jodhpur.

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