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The current COVID-19 crisis and the consequent lockdown have not spared even the Chief Minister of the Maharashtra. The crisis and the lockdown now apparently challenge Uddhav Thackeray's continuance in office.
It is being said in various news reports as well as write-ups that the Chief Minister will have to demit office on or before May 27, unless elections are held and he is elected.
Even the Governor of the State of Maharashtra and the Election Commission of India have proceeded on this incorrect notion and have taken steps for holding elections in this crisis. Let us first have the relevant time line to understand whether the Hon’ble Chief Minister has to demit the office on May 27 or not.
Article 164: What the Constitution Says
This assumption that the Chief Minister will have to demit office on May 27, six months from his swearing–in, is on the basis of Article 164(4) of the Constitution of India, which reads:
164. Other provisions as to Ministers
(4) A 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.
The privilege of six months
The opportunity to become a Minister( including a Chief Minister) without being elected to any of the Houses of the state legislature has been consistently held to be a privilege.
A brief reference to the proceedings of the Constituent Assembly would be apposite. A member of the Constituent Assembly proposed an amendment to the following effect:
“No person should be appointed a minister unless at the time of his appointment, he is elected member of the House.”
Dr. Babasaheb Ambedkar opposed the amendment by saying:
“Now with regard to the first point, namely, that no person shall be entitled to be appointed a Minister unless he is at the time of his appointment an elected member of the House, I think it forgets to take into consideration certain important matters which can not be overlooked.
First is this and it is perfectly possible to imagine that a person who is otherwise competent to hold the post of a Minister has been defeated in a constituency for some reason and 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 as that should not be permitted to be appointed a member of the Cabinet on the assumption that he shall be able to get himself elected from the same constituency or from another constituency. After all the privileges that he is permitted is a privilege that extends only to six months. It does not confer a right on that individual to sit in the House not being elected at all...”
After this explanation by Dr. Ambedkar, the proposed amendment was dropped. This explanation clearly culls out that the intent behind providing the privilege of six months to a Minister who is not a member of the House, is to enable him an opportunity to get elected as a member of the House.
It has been consistently held in all the decisions by the Supreme Court that the six month period provided under Art. 164(4) to a person who is chosen as Minister, though not elected, is to enable him to get elected in either of the House of the state legislature. The relevant excerpts of the some of the said decisions are as under:
The Constitution Bench in Har Sharan Verma v. Tribhuvan Narain Singhquoted with approval the following passage :
“The Rule of responsible Government that ministers must be Members of Parliament is ensured by the statutory requirement that they be or within three months become members of either House.”
In SR Chaudhuri v. State Of Punjab & Ors, it was held,
"35. The sequence and scheme of Article 164, which we have referred to in an earlier part of our order, clearly suggests that ideally, every minister must be a member of the legislature at the time of his appointment, though in exceptional cases, a non-member may be given a ministerial berth or permitted to continue as a Minister, on ceasing to be a member, for a short period of six consecutive months only to enable him to get elected to the Legislature in the meanwhile..."
The provision is unambiguous and clearly provides that the Minister must be given six months' time in a functioning democracy for being elected as member of either of the House of the state legislature. It is a fossilised principle of law that the privilege/right conferred by the Constitution cannot be taken away or whittled down.
Did the Chief Minister get the complete six months?
In the present situation, the Chief Minister did not have the entire period of six months for being elected, due to the lockdown being imposed from March 25 till May 18. During this lockdown, the Chief Minister lost a valuable 39 days or even more, which were otherwise available to him.
In fact, the election for 9 MLC posts that were to fall vacant on April 24 were scheduled to be held on March 26, but could not be held due to the nation-wide lockdown.
A Minister as per Article 164(4) of the Constitution is entitled to a period of six months in a functioning democracy so that he gets a full opportunity to contest and get elected. The entire period of lockdown will therefore have to be excluded for calculating the period of six months, as our democracy was not functioning during the period of lockdown.
The six month period provided by Article 164(4) of the Constitution of India cannot include the lockdown period during which elections could not be held. Thus, it is not correct to say that the six months period for Thackeray would end on May 27. Otherwise, we would be curtailing the period guaranteed to him by the Constitution.
This principle of exclusion of time has already been applied by the Bombay High Court in the interim order dated April 11 passed in Transcon Sky city Pvt Ltd and Others v. ICICI bank and Others. It has been held by the High Court that for calculating the statutory 90 days default for declaring an account to be NPA, the period of lockdown cannot be taken into account and must be excluded.
The Supreme Court of India has also invoked its plenary powers under Article 142 of the Constitution of India, and held by order dated March 23 that the time of lockdown from March 15 shall be excluded for calculating limitation for all legal proceedings.
Thus, it is imperative that this same principle of exclusion be applied for calculating the period of six months guaranteed to the Chief Minister by our Constitution.
The Governor and the Election Commission
Initially, the Election Commission of India (EC) had cancelled all elections in the entire nation due to the COVID-19 crisis and the lockdown. When this decision of cancellation had been taken, the pandemic had not spread to the extent we are witnessing now. Despite this, on a belief that the Chief Minister will have to demit office on May 27, the EC, on a request by the Governor, declared biennial elections for the nine vacant seats of the Maharashtra Legislative Council.
In view of the above, since the period of lockdown is required to be excluded, there is no need to hold elections in the midst of this crisis, particularly when the State of Maharashtra is the most affected state and the entire state machinery is required for combating this pandemic.
Due to this flawed notion, the focus, time and effort of the state machinery, the elected representatives and the Chief Minister will turn towards holding and fighting elections, and not controlling the COVID-19 crisis.
During this crisis, elections should be the last thing on anyone’s mind, for it would entail risking the lives of voters and their family members without any rhyme or reason. Without exaggeration it can be said that invariably, everyone’s life is being put to risk as one cannot estimate the spread that one election at these times can cause. Let not an avoidable exercise become a red herring and a potential danger in these challenging times.
The author is an Advocate practicing at the Nagpur Bench of Bombay High Court.