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The Bombay High Court has been moved with a plea to direct the Governor of Maharashtra to act upon the recommendation of the Council of Ministers to nominate Chief Minister Uddhav Thackeray as a Member of the Legislative Council (MLC).
Thackeray, who was sworn in as Chief Minister of the state on November 28 last year, is neither an MLC nor a Member of the Legislative Assembly (MLA). As per Article 164 of the Constitution, Thackeray will cease to be a Minister within six months of his appointment as CM, if he fails to secure a seat as an MLA or an MLC. The deadline for the same is May 28.
Elections for nine seats to the Maharashtra Legislative Council, which were scheduled to be held on March 26, have been postponed on account of the Coronavirus lockdown. Given that the MLA elections have concluded, the only route for Thackeray is to get nominated as an MLC by the Governor of the state.
Faced with this predicament, the Council of Ministers of the Maharashtra government had, on April 9, sent a communication to Governor Bhagat Singh Koshyari recommending that Thackeray be nominated as an MLC.
On April 27, the Council of Ministers reiterated its recommendation to the Governor. However, no response has been received from Governor Koshyari.
This prompted petitioner Surinder Arora to move the Bombay High Court seeking that the proposal be acted upon with haste. Arora, who is the Founding President of the Bharat Jan Aadhar Party, has stated in his plea that the Governor is bound to act on the aid and advice of the Council of Ministers.
As per Article 171(5) of the Constitution, those members may be nominated to the Legislative Council who have special knowledge or practical experience in respect of such matters as literature, science, art, co-operative movement and social service. In this light, the petition states that Thackeray, who had been a professional photographer, editor and social worker, qualifies for such nomination.
The petition avers that the Governor had consulted Advocate General Ashutosh Kumbhakoni, who responded that the decision of the Council of Ministers deserves consideration and does not suffer from any unconstitutionality or illegality. Thus, it is stated,
“In these circumstances, there was no reason to withhold the proposal for almost three weeks except for the purpose of embarrassing and pressurising the incumbent Chief Minister of Maharashtra and that the BJP can offer other allurements to the members belonging to the ruling party to seek their defection.
Unless the Governor takes a final call on the proposal of the Council of Ministers immediately, the same would lend scope for horsetrading. Any further delay in nominating Shri Uddhav Thackeray or at least taking decision on the proposal of Council of Ministers would be detrimental to the public interest, the administration and the political stability in the State.”
Arora’s petition, filed through Advocate Satish Talekar, also poses the following questions of law:
Whether the Hon’ble Governor can sit over the decision of the Council of Ministers in the matters of recommendations for nominating members under Article 171(5) of the Constitution of India?
Whether the inaction on the part of the Governor in deciding the proposal submitted by the Council of Ministers is contrary to the scheme of the Constitution of India?
It is further pointed out that the High Court had refused to entertain a plea filed by a BJP member calling into question the decision of the Council of Ministers to recommend that Thackeray be nominated as an MLC.
On the basis of these grounds and others, the petition has prayed that the Court direct the Governor to decide on the proposal of the Council of Ministers dated April 9 recommending the nomination of Thackeray. This decision is sought to be taken within three days of the Court hearing the plea.
The Court is likely to hear the plea on May 5.
Meanwhile, Governor Koshyari has written to the Election Commission of India, requesting that the results of the MLC elections for nine vacant seats be announced at the earliest. After the nine seats had fallen vacant on April 24, the Election Commission had decided against filling the vacancies, in light of the COVID-19 lockdown.
[Read the petition]