A Restless Pause

On 28^th November 2019, after a political game of thrones, Thackeray was sworn-in as the Chief Minister of Maharashtra with the strength and support of the Maha Vikas Aghadi – a three-way coalition between the Shiv Sena, the Nationalist Congress Party and the Indian National Congress. What was lost in the boisterous celebrations that followed the saccharine victory over the Bharatiya Janata Party was the fact that Thackeray was not an elected member of either the Legislative Assembly or the Legislative Council of Maharashtra, a mandate of the Constitution of India.

Under Article 164(4) of the Constitution, if a Chief Minister or Cabinet Minister is not a member of either house of the state legislature for a consecutive period of six months, then on expiry of the said period he/she ceases to be such Minister. It, hence, becomes imperative for Thackeray to secure membership to the Council on or before 27^th May 2020. It is believed that Thackeray had initially intended to obtain a seat in the Council by election. The Members of the Legislative Assembly, who are popularly elected, are required in turn to elect one-third of the Members of the Legislative Council. A seat by election would, therefore, have been a theoretical certainty for Thackeray given the majority the MVA presently commands in the Assembly. Unfortunately for him, with the proliferation of the COVID-19 virus and the ensuing nationwide lockdown, the elections to the Council were temporarily suspended. As an election through the Assembly seemed improbable before the 27^th May deadline, the cabinet was left with no option but to seek Thackeray's membership to the Council by nomination. In terms of Article 171 of the Constitution, an approximate two-twelfths of the members of the Council are to be nominated by the Governor and shall consist of persons having special knowledge or practical experience in respect of matters like literature, science, art, co-operative movement or social service. Thackeray is the eighth Chief Minister of Maharashtra, who though not elected by popular mandate, has sought election/nomination under the mechanism provided under Article 171 of the Constitution.

Accordingly, on 9^th April 2020, the state cabinet forwarded to the Governor of Maharashtra, Bhagat Singh Koshyari, its recommendation for nomination of Thackeray to the Council. This nomination of the state cabinet was challenged before the Bombay High Court in the case of Ramkrishnan @ Rajesh Govindswamy Pillay, President (Conveyor) vs. The State of Maharashtra & Ors. However, vide Order dated 20^th April 2020, the HC was pleased to dismiss the Petition, while making a significant observation that the Governor is required to be advised by the Council of Ministers of the state under Article 163 while exercising power under Article 171(3)(e) read with Clause 5. It also proceeded to note that the Governor is expected to consider whether the proposal/recommendation received from the Council of Ministers is valid in law. To ensure that it does not interfere with the Governor's independent decision-making authority, the Hon'ble Court refused to grant any relief to the Petitioner, a member of the BJP's Working Committee.

However, the Governor continued to remained non-committal on the nomination, and sought no clarifications from the state cabinet to assuage any reservations he may have as to the legality of the nomination. Consequently, the recommendation for Thackeray's nomination was renewed on 28^th April 2020, with a delegation of the MVA leaders led by Deputy Chief Minister Ajit Pawar seeking personal audience with Koshyari.

On 29^th April 2020, Thackeray is believed to have escalated the issue to the Prime Minister, Narendra Modi – an indication, if ever there was one, of the sway the Centre holds over Raj Bhavan. In a peculiar turn of events and on a specific request from an anxious state cabinet, on 1^st May 2020, Koshyari, instead of accepting the nomination as he was bound to do, wrote to the Election Commission urging the latter to declare elections to nine vacant seats in the Council. Following a meeting of the senior officials of the EC, a decision was taken to hold elections to the nine Council seats on 21^st May 2020, after serving the mandatory 21-day notice period.

In delaying his assent to Thackeray's nomination to the Council, Koshyari may not have fallen foul of the letter of the law; but by withholding a recommendation made by the state cabinet for close to a month when the law offers him no scope for discretion, he has skirted the edge of Constitutional impropriety. The culpability is compounded given the attempt to derail the wheels of the state government in the midst of an unprecedented domestic crisis.

The genesis of Article 164(4) of the Constitution that provides for a grace period of six months to any Minister who has not been elected may be traced to Section 10(2) of the Government of India Act, 1935. Dr. B. R. Ambedkar's rationale behind retaining this provision in its entirety was to ensure two things: i) that an otherwise competent individual who has not been elected by a specific constituency for some reason is not barred from being appointed a Minister on that ground alone, and ii) the fact that a nominated Minister being a part of the Cabinet neither violates the principle of collective responsibility nor does it violate the principle of confidence.

The Supreme Court has consistently upheld such appointments in various cases, including Har Sharan Verma vs. Shri Tribhuvan Narain Singh, Chief Minister, U.P., AIR 1971 SC 1331, wherein the appointment of Shri T. N. Singh as the Chief Minister of Uttar Pradesh in the absence of being a member of either house was challenged. The Petitioner argued that a Governor cannot appoint a person who is not a Member of the Legislature as a Minister under Article 164 (1) of the Constitution. However, the Court upheld the validity of Article 164(4) and held that a person, not being a Member of either House, can continue in office for a period of six months.

In this backdrop, the refusal of the Governor of Maharashtra to nominate Thackeray by exercising his right under Article 171 assumes wider significance. It also points to a question that has been at the epicentre of debates on division of powers between the formal and real heads of the Executive in keeping with India's Westminsterial legacy. Under Article 163(1) of the Constitution, the Council of Ministers, along with the Chief Minister, is required to aid and advise the Governor in 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. Dwelling on the exception enumerated in this provision sheds light on the aspect of discretionary powers, if any, that the Governor may have under our constitutional polity. The question of whether this exception ought to be retained in the Constitution became the subject of an animated debate in the Constituent Assembly. The primary concern of a majority of the members of the Constituent Assembly appeared to be about the need to bestow upon the Governor such discretionary powers when the position was being contemplated as a purely symbolic one. Dr. Ambedkar assuaged the members of their concerns by pointing out that "… the clause is a very limited clause. Therefore, Article 143 will have to be read in conjunction with such other articles which specifically reserve the power to the Governor. It is not a general clause giving the Governor power to disregard the advice of his ministers in any matter in which he finds he ought to disregard.". Article 143 of the Draft Constitution finds mention in our present Constitution as Article 163.

Article 163(2) of the Constitution mandates that "if any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.". In Nabam Rebia and Bamang Felix vs. Deputy Speaker, Arunachal Pradesh, 2016 SCC OnLine SC 694, the Supreme Court held that according primacy to Article 163(2) would convert the Governor into an all-pervasive constitutional authority which is clearly not in keeping with the basic tenets of the Constitution. It also affirmed, yet again, that the Governor is only a formal and constitutional head of the executive and that the Constitution offers no scope for the exercise of a parallel administration.

An argument may be advanced in favour of the exercise of the Governor's discretionary powers under certain circumstances, but it may be pertinent to note that even these powers have been subjected to various forms of limitations and checks over time, either in terms of the Constitution itself, or made possible by the Court's interpretation of it. In Rameshwar Prasad vs. Union of India, (2006) 2 SCC 1 [223], discretionary actions of the Governor were brought within the ambit of judicial review. This was in keeping with the landmark decision in S.R. Bommai vs. Union of India, (1994) 3 SCC 1, where along with expanding the scope of judicial review to cover gubernatorial decisions, a set of guidelines were also laid down for the Governors to consider while exercising some of their rights under the Constitution. It may not be an overstatement to suggest that such interventions were necessitated owing to questionable exertion of powers by the Governors.

A seminal ruling on this issue is the Supreme Court's decision in Shamsher Singh vs. State of Punjab, AIR 1974 SC 2192, where the scope and extent of the powers of formal heads as envisaged in the Constitution came to be meticulously explored. It held the following: "We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various Articles, shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister) restricted though his choice is, by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the Head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory.".

Another instance where the real and formal heads of state locked horns was in the case of State of Gujarat vs. Justice R.A. Mehta, (2013) 3 SCC 1, which concerned the challenge to the appointment of the Lokayukta by the Governor. The Supreme Court held that the Governor is synonymous with the State Government, and can take an independent decision upon his/her own discretion only when he/she acts as a statutory authority under a particular Act, or under the exceptions provided in the Constitution itself. Thus, the SC clarified the exceptional circumstances wherein the Governor could act independently.

It is of import that even in specific circumstances where the Governor has been empowered with such form of a discretionary power, there are substantial restrictions. For example, the power to withhold assent to Bills under Article 200 is limited to the extent that if the same is presented to the Governor for a second time, the Governor lacks the authority to withhold his assent for the second time. Similarly, the powers to reserve a Bill for the consideration of the President and promulgate Ordinances under Article 213 have also sought to be restricted by several committees in the past such as the Rajamannar Committee. Even then, it bodes well to recall that such discretionary actions may still attract judicial review if the same are found to be mala fide or arbitrary.

The Constitutional Debates surrounding these provisions have made the intention and inclination of the framers of the Constitution unquestionably clear: The Governor is perceptibly empowered, but remains a titular head who must act within the canopy of the state cabinet's recommendations. If he disagrees with the cabinet's mandate, it must be under the recognized exceptions, absent which he risks infringing the Constitution.

The logical consequence of a conjoint reading of Articles 163 and 171 of the Constitution, and the various decisions of the Supreme Court which repeatedly establish the Governor's limited discretionary power under these provisions, makes it evident that Koshyari's act of delaying the acceptance of the cabinet recommendation toyed with what the Constitution would consider appropriate. The time may be nigh for the guardians of the Constitution to consider whether an indefinite deferral of a decision is tantamount to exercising discretion where none exists. Recommendations of the state cabinet ought to be accompanied by a ticking clock, lest the functioning of a state empowered by the Constitution be held at ransom to the whims of a Governor with vested political interests. One can only hope that the reverence for democratic institutions and the inexhaustible veneration for constitutional values that guided our forefathers may prevail upon us.

Views Are Personal Only.