Context: Maharashtra may still be grappling with the coronavirus crisis in May, but the CM of Maharashtra also has a constitutional crisis to resolve by then.
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- The CM of Maharashtra, who took oath in November, will have to get elected to either of the houses of the state legislature before last week of May, as per Article 164(4) of the Constitution.
- The Maharashtra cabinet recommended current CM’s name to the Governor to one of the seats reserved for the Governor’s nominee in the Upper House after the EC deferred elections indefinitely.
- Maharashtra’s CM can be said to have a stronger claim in this regard, he is an ace wildlife photographer and, as per the Allahabad High Court in Har Sharan Verma vs Chandra Bhan Gupta And Ors, even politics can be seen as social service.
- However, the Election Commission had already postponed Rajya Sabha polls, byelections and civic body elections in the wake of the pandemic by using its powers under Article 324 of the Constitution, along with Section 153 of the Representation of the People Act, 1951.
- The only way to fulfil the requirement, therefore, is for the CM to be nominated to the Upper House by the Governor.
- If that does not happen, he will have to make way for someone else to lead the coalition.
- A double application of Article 164 (4) to extend this period for another six months was out of the question as the Supreme Court, in S.R. Chaudhuri v. State of Punjab and Ors (August 17, 2001), had declared that it would tantamount to a subversion of the principle of representative government.
- The Election Commission of India (ECI) decided to hold elections to nine vacant Maharashtra Legislative Council seats after receiving letters from the State Governor and the Chief Secretary regarding the feasibility of conducting the polls during the pandemic.
- The State government had assured the Election Commission that the elections will be held in total hygienic conditions with social distancing norms and other imposed conditions.
As per Article 164(4) of the Constitution, 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.
As per Article 85 of the Constitution, the President shall form time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.
As per Article Article 174(1) of the Constitution, the Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.
Holding Elections in the time of Pandemic
- Though only the 288 members of the Vidhan Sabha will be voting in this election, the EC has taken up a big responsibility in terms of strict implementation of the Health Ministry’s guidelines.
- But a bigger cause for concern for the EC are the upcoming Assembly elections for Bihar (which must be concluded by end of November, 2020), West Bengal (May, 2021), Assam (May, 2021), Kerala (June, 2021), Tamil Nadu (May, 2021) and Puducherry (June, 2021).
- Unlike the Rajya Sabha/Legislative Council elections which can be postponed indefinitely, there is a constitutionally defined limit as per Article 85(1) and Article 174(1) which states that EC can postpone elections to the Lok Sabha and State Legislative Assemblies for a period of only six months.
- In case of a further period of extension, the executive’s will be faced with two possibilities.
- The first is proviso to Article 172(1) whereby during a state of Emergency, an election can be postponed for one year in addition to a period of six months after Emergency is lifted.
- It comes with a rider albeit, that a state of Emergency can be declared only if there is a threat to the security and sovereignty of the nation, not if there is an epidemic or a pandemic.
- The second option is to declare the President's rule in the State, enabled by Article 356(1) of the Constitution.
- But its limits have been repeatedly defined by the Supreme Court.
- A role model can be the State of South Korea that just conducted its national election with 44 million voters in the midst of the pandemic.
- Under strict guidelines, it managed to pull off a near-perfect national election recording the highest voter turnout of 66.2% in the last 28 years.
Lessons from South Korea
Strict implementation of Health measures
- South Korea disinfected polling centres, and mandated that voters practise physical distancing, wear gloves and masks and use hand sanitiser.
- Voters had their thermal screening on arrival at the booths.
- Those who had a temperature above 99.5 degrees Fahrenheit were sent to booths in secluded areas.
- The voters who were infected with COVID-19 and were allowed to mail their ballots, while self-quarantined voters were allowed to vote after 6 p.m.
Peculiarities in Indian Context
- The population of States like Bihar (9.9 crore) is huge compared to South Korea’s population (5.16 crore).
- The EC could adopt targeted measures for older voters who are more vulnerable to COVID-19.
- Options like proxy voting under a well-established legal framework, postal voting, and mobile ballot boxes can be explored.
- The EC has a difficult task of sticking to its goal of No Voter Left Behind while also ensuring that the elections do not turn into a public health nightmare.
- The COVID-19 pandemic is a big threat to the established world order.
- It is quickly transforming fragile and vulnerable democracies into autocracies in the name of public safety.
- It is upto India as how it responds to this crisis.
The Nomination route - Precedents
- A situation in which an individual who is not a member of the legislature becomes chief executive of the government is in itself fairly common.
- H D Deve Gowda was not a Member of Parliament when he was appointed Prime Minister in June 1996.
- Sushil Kumar Shinde and Prithviraj Chavan were not members of the Maharashtra legislature when they became Chief Minister in 2003 and 2010 respectively.
- A political situation in Punjab in 1995 when Congress leader Tej Parkash Singh, who was then not a member of the Assembly, was appointed a minister in September 1995.
- In March 1996, before he could get elected within six months, the minister resigned but was subsequently appointed again as minister during the term of the same legislature.
- When the appointment was challenged, the Punjab and Haryana HC dismissed the plea but the Supreme Court held that Singh’s second appointment without getting elected in the meanwhile was improper, undemocratic, invalid and unconstitutional”.
- The decision, however, was only an academic exercise as it came in 2001, well after the Assembly had completed its term.
- J Jayalalithaa also briefly resigned as Tamil Nadu Chief Minister in 2001 despite winning a huge mandate owing to legal troubles.
- As she was convicted in corruption cases, Jayalalithaa was not allowed to contest elections but was elected party leader and became CM.
- Before her six-month window to get elected expired, the SC ruled that her appointment was unconstitutional.
- Jayalalithaa resigned, however, after the Madras High Court acquitted her, she contested and won a by-election in 2002 and returned as CM.
- In S R Chaudhuri vs State of Punjab and Ors (2001), the Supreme Court had ruled that “it would be subverting the Constitution to permit an individual, who is not a member of the Legislature, to be appointed a Minister repeatedly for a term of six consecutive months, without him getting himself elected in the meanwhile.
- The practice would be clearly derogatory to the constitutional scheme, improper, undemocratic and invalid.
Article 171(3)(e) coupled with Article 171(5) of the Constitution, empowers the Governor to nominate persons having special knowledge or practical experience in respect of. literature, science, art, co-operative movement and social service.
- There are legal issues of CM of Maharashtra having to be nominated to the Legislative Council on one of its two vacancies.
- According to Section 151A of Representation of the People Act 1951, The time limit for a bypoll to fill vacancies is six months from the date of occurrence of vacancy.
- Provided that nothing contained in this section shall apply if
- The remainder of the term of a member in relation to a vacancy is less than one year.
- The Election Commission in consultation with the Central Government certifies that it is difficult to hold the by-election within the said period.
- The terms of the two vacancies in the Legislative Council end in June.
- However, this cannot be a reason for the Governor to refuse nomination, because the bar is in respect of a by-election to fill a vacancy, not nomination.
The Question of Governor’s discretion
- In Biman Chandra Bose vs Dr H C Mukherjee (1952) the Calcutta High Court rejected the plea that none of the nine nominated members to the legislature fulfilled the required criteria.
- It held that the Governor cannot use his discretion in nominating members to the Council.
- He has to go by the aid and advice of the Council of Ministers.
- As per Article 163(1) of the Constitution it is imperative for the Governor must follow the recommendations of the Council of Ministers in all situations except insofar as he is by or under this Constitution required to exercise his functions or any of them at his discretion.
- However It can be argued that Maharashtra’s governor is bound by the advice of the Council of Ministers only in executive matters as defined in Article 162 (with respect to which the Legislature of the State has power to make laws)
- However, since the nomination of members is not an executive power, he can act at his discretion.
- Also, the Constitution specifically mentions the situations in which the Governor can act in his discretion,
- Like Article 239 (Administration of Union Territories)
- Article 371 (Special provision with respect to the States of Maharashtra and Gujarat)
- Article 371A (Nagaland)
- Article 371H (Arunachal Pradesh), and
- In the Sixth Schedule (Provisions as to the Administration of Tribal Areas in Assam, Meghalaya, Tripura and Mizoram), etc.
- The Governor does have a general discretion in appointing the Chief Minister, but there are well established conventions governing the exercise of such discretion.
- Even the Governor’s pardoning powers are to be exercised on the aid and advice of the Council of Ministers (Maru Ram vs Union of India, 1980).
- In Hargovind Pant vs Dr Raghukul Tilak & Ors (1979), the Supreme Court held that the Governor is not an employee of the central government.
- S(He) is neither under its control nor accountable to it, and is an independent constitutional office.
Lastly,the Governor could argue that he is not obligated under the Constitution to act swiftly on the advice of the Council of Ministers and also, he shouldn’t nominate someone only to save his chief ministership. But it is important to note that India, particularly Maharashtra is currently battling a health emergency of an unprecedented nature. Political uncertainty is the last thing that Maharashtra requires at this moment.
- Article 169:
- Parliament may by law provide for the abolition or creation of the Legislative Council of a State,if the Legislative Assembly of the State passes a resolution to that effect by a special majority (majority of the total membership of the Assembly and by a majority of not less than two thirds of the members of the Assembly present and voting).
- The act of Parliament to create/abolish LCs is not deemed as an amendment under Article 368. So, a Simple majority in Parliament suffices.
- At present, there are six states viz Andhra Pradesh, Telangana, UP, Maharashtra, Bihar, Karnataka, where Legislative Council is in existence .
- Jammu and Kashmir too had one, until the introduction of J&K Reorganisation Bill, 2019 that bifurcated it into the Union Territories of J&K and Ladakh.
- Under Article 171(1), the Legislative Council of a state shall not have more than one-third of the total strength of the State Assembly, and in no case, shall be less than 40 members.
Tenure of Members
- Similar to the Rajya Sabha, the legislative council is a continuing chamber, i.e. it is not subject to dissolution. The tenure of a Member of the Legislative Council (MLC) is of six years, with one-third of the members retiring every two years.The retiring members are also eligible for re-election and re nomination any number of times.
Election of Members
Total Members of Legislative Council
Elected by MLAs of the Legislative assembly of the state.
Elected by an electoral college of Members of municipalities, district boards and other local authorities in the state.
Nominated by the Governor from among those having distinguished services in literature, science, art, the cooperative movement, and social service.
Elected by an electorate consisting of teachers.
Elected by an electorate consisting of registered graduates.
Standing with respect to Rajya Sabha
- The constitution hasn’t mandated LCs to shape non-financial legislation (Ordinary Bills, Constitution Amendment Bills) like it has been substantially endowed to Rajya Sabha.
- Legislative Assemblies can override suggestions/amendments made to a Bill by the Council. There is no provision of a Joint sitting in order to resolve the deadlock.
- Further,Rajya Sabha MPs are part of the electoral college related to elections for the President and Vice President whereas MLCs are not.
- Also, the status accorded to Chairperson of Rajya Sabha (Ex-Officio Vice President) is starkly different vis-a-vis elected chairperson of the Legislative Council.
Legislative Procedure in the Legislative Council
Type of Bills
Powers of LC
Introduction of Bills
Passage of Bills
Ordinary Bills can be introduced in either of the houses viz Legislative Assembly or Legislative Council.
It needs to be passed by both houses to become an Act. However, there is no provision of Joint sitting in case of deadlock. At most, LC can delay the bill for a period of 4 months.
The ultimate power of passing an Ordinary Bill rests with the Legislative Assembly.
It cannot be introduced in the Legislative Council.
The Legislative Council can’t reject or amend a money Bill. It can delay the money bill for a period of at most 14 days.
Rationale for Creation of the LC
- India has a bicameral system vis-a vis legislative setup. So, In the same manner as that of Indian Parliament that has two Houses(House of the People and House of Elders), the states can also have an equivalent of Upper house i.e. Legislative Council.
- Acts as a check and balance on hasty and populist actions by the directly elected House.
- Facilitates diversity in the legislative process by the provision of nomination of non-elected individuals.
- It enhances the representation of local bodies in state legislation as they are given rights to elect 1/3rd of the members of the LC.
- It has become a backdoor entry for party loyalists who fail to win popular mandates.
- Financial burden on the exchequer.
- At times, unnecessary delays in the passing of legislation as LCs can only re-evaluate and suggest amendment but cannot reject them.
- Providing graduates the privilege of being people’s representatives in a democracy is also questionable. As literacy and education levels have increased, graduates are no longer a scarce community. Also given the rise of intellectual prowess of lawmakers, this provision seems obsolete.
- Recommendations of Parliamentary Committee
- Need of the hour is to evolve a National policy on Legislative Councils to ensure that the Constitutional mandate of LCs is followed. Its fate cannot be decided as per the whims and fancies of the ruling government.
- Law-making powers of LCs need to be deliberated and debated, given their potential role in shaping policies and legislations for the development of states.
- 2nd ARC
- It recommended removing Graduates and teachers from the electoral college and make local bodies (panchayat and municipalities) sole electorate with genuine nomination alongside to have local bodies greater say.