 I am Paranjoy Gohar Thakurtha and today we are going to discuss the likely constitutional crisis in Maharashtra. And with me here joining me from Faridabad is Mr. P. D. T. Achari, he's a former Secretary General of the 14th and the 15th Lok Sabha. Thank you very much Mr. Achari for giving us your time. Well Mr. Achari on the 28th of November Mr. Uddhav Thakre was sworn in as Chief Minister of Maharashtra. He is the Chief Minister representing a three party coalition, the three parties are the Nationalist Congress Party, the Indian National Congress and the Shivasena and the coalition is called the Mahavikas Agati. Now as per Article 164 of the Constitution of India a non legislator can occupy any post in a council of ministers including that of the Chief Minister for a period of six months thereafter he ceases to be a minister. Now Mr. Uddhav Thakre has time till the 28th of May to either become an MLA, a member of the Legislative Assembly or a member of the Legislative Council. Now because of the COVID-19 crisis there were supposed to be elections to nine positions or nine posts of MLCs on the 26th of March but the elections got postponed indefinitely. Now the State, the Cabinet of Maharashtra has recommended to Governor, the Governor of Maharashtra Bhagat Singh Koshyari on the 9th of April that he be nominated to the post of an MLC, a member of the Legislative category under a special category. This is a special category of nominees who are supposed to be experts either in literature or science or the arts or in cooperatives of social sciences and this comes under Article 171 of the Constitution of India. Now so far the Governor has not acted so what are the problems, what are the constraints, can you kindly explain the legal position? See the Constitution makes a provision for nomination as you said just now and nomination to the Legislative Council and also a nomination to the Rajyasa. Now there are nine vacancies, there are nine positions nominated categories because the occupants of this nominated membership have perhaps resigned and went over to the BJP. So there are at the moment there are two vacancies in the Legislative Council. Legislative Council membership consists of elected members as well as nominated members. So a person can be either elected to the house or can be nominated to the house. A nominated member and the elected member are of the same status, there is no difference in status. The only disability that is attached to the nominated member is when there is a presidential election the nominated member doesn't have a voting right, that is the only difference. Otherwise in terms of status and in terms of other things nominated member and the elected member are the same. Now therefore here as you said in the beginning the election commission had to postpone the elections, regular elections to the Legislative Council because of this pandemic. The election commission has the power to postpone an election under such circumstances. Now the only option left before Mr. Uthav Thakiri of the government there was to get him nominated to the Legislative Council. So the governor is the authority who nominates these members to the house. We must remember one thing here, nomination of a member to the house is an executive function. It's done by the executive, they suggest the names and the governor has the constitutional head approves the name and the man is nominated, the notification is issued and the man is nominated that is the process. Now how the governor takes a decision that's very interesting. Now the governor seems it is an executive function. The governor has to go by the advice of the council of ministers. In all executive matters the governor being a constitutional head has to act on the advice of the council of ministries. Under our constitutional scheme the real power vests in the elected government and not in the governor. That is why constitutional experts always say that the governor is only a constitutional head which means the power vests in the elected government and the government means the governor acting on the aid and advice of the council of ministries. The governor cannot act. Okay you made this point very clear that the government cannot act on his own. He has to go by the advice of the council of ministers. Let's take two steps back. Now we see that under section 151a of the representation of the people act 1951, what does it state? It says that election to the post of an MLC, a member of a legislative assembly, cannot take place if less than one year of the term is pending. But nothing has been stated about nominated members. These are elected members of the MLCs. Now what we have in Maharashtra, out of the nine positions that are vacant, there are two nominated MLCs who switched their political allegiance to the Bhartiya Janta party before the assembly elections took place on the 21st of October 2019. Now their term is supposed to end on the 6th of June. Now the question would be, is the governor, is he empowered to reduce the term of these nominated members? They're not elected, they're nominated. Even if he has no option but to accept the recommendation of the cabinet of ministers. This is the question I have for you and why do I ask you this question because there is another viewpoint. There is a contrary viewpoint. One of your predecessors, a former secretary general of the Lok Sabha Mr. Subhash Kashyap, he said that there are various options. There are three options before Mr. Uddhav Thakre. If he cannot, he believes it's not constitutionally proper to be nominated as an MLC by the governor or he sort of resigns for a day and then gets reappointed. But in the case of Tej Prakash Singh of Punjab in 1995, the Supreme Court ruled that against that, he just can't resign for a day or two and then get re-nominated. Therefore, the other third option is that the governor appoints some sort of a caretaker chief minister. Now, I'm not clear as to which of these options work, especially in the context of the fact that two nominated MLCs, their term ends only on the 6th of June. Yes, sir. Well, that of course forces a problem. I must say that because the period is very short, even if he is nominated, even if Mr. Uddhav Thakre is nominated, his term will end in June. But I must say that in fact, there is nothing in the law, nothing in the constitution, which says that a vacancy in the nominated category is when it is filled up, the member who is nominated, he will be a member only for the remaining period. Nothing is said, nothing is clear. So far as elected members are concerned, the law is very clear that they are elected for the remaining period, two year or one year or whatever. But in the case of nominated categories, there is no such thing. Constitution doesn't say anything about it. There is no law about it. But the Rajya Sabha has always been acting on the assumption that the nominated category member will also remain there only for the remaining period. So let us assume that the term ends in June, 6th June or whatever. That means he will be nominated only for one month. And after that, suppose the elections are not held, then what happens? The same situation, we will be back to square one. And that is probably why perhaps the governor is having taken parts or governor is not acting. But that is not the reason why the governor shouldn't react. See, the governor has to, certainly if he has some reservations or if he has some doubts about it, then he must get back to the cabinet, ask them, seek a clarification. That is the convention. And then after that, he has to act. So nothing of that sort has happened so far. Everybody in the government is in the dark. So that is a situation which perhaps, you know, is not a very healthy kind of thing. So far as the options which you mentioned are concerned. Now, suppose the governor doesn't act at all, the governor doesn't nominate. You know, nomination takes place. In which case on 20th May, his term ends, I mean, his ministry ends, and he has to go. As Mr. Subash Keshav has said, after two days, he can be Sonya's chief minister, which is not possible now in view of the Supreme Court's decision in the Punjab case which you quoted. Tej Prakash Singh case. Yeah, but it was actually, you know, in 2001 also, R.C. Choudhury versus state of Punjab, in that case, the three-judge bench of the Supreme Court had made it very, very clear that if it is done, it will be a fraud on the constitution and it is a fraud on parliamentary democracy and so on. So that option is not available. So the only option in that case is, the governor or the ruling combined will elect a leader of the legislature party, a new leader, and he will be sworn in as the chief minister. So in our constitutional scheme, there is nothing like a caretaker government. Because when I'm- Or are you mean a caretaker chief minister? A caretaker chief minister. Chief minister is a chief minister, a full-fledged chief minister who has all the powers, has all the authorities under the constitution. So when a governor appoints a person as a chief minister, he is the chief minister and he will be leading the government, leading the government. And then the duration of that government, etc., etc., there is a political question that we don't have to go into. The election commission can hold the elections if the pandemic subsides and the election commission thinks that the time is okay to hold the elections. They can hold the elections and Mr. Uttar Thakre can be elected to the legislature council or the assembly. And then he can be the other government and the chief minister can resign and Mr. Uttar Thakre can come in. That process can go. Mr. Achary, before I return to the whole issue of the role of the governor in this entire controversy or in this entire impasse, what I mean you are saying it's now completely up to the discretion of the election commission of India that everything depends on Nirvachan Sadan. Nirvachan Sadan will decide when the elections are going to take place. Now, they were supposed to take place on the 26th of March, on the 24th of March, there was a countrywide lockdown. We know that Maharashtra is one of the states which has been affected very, very badly by the COVID-19 virus. So it is now completely up to the discretion of the election commission of India as to when the elections are held. Am I correct? Well, the law says on the expiry of the term of the members, elections will be held to fill the vacancies. That is all one of the law says. Now that means the election will have to be held to fill the vacancies which will arise. But if the circumstances are such that the elections cannot be held and then election commission has to take a view on that and nobody else because so far as conducting the elections are concerned, it is the election commission which has to decide about the date. If the election commission thinks that it is not suitable to hold the elections, then they can postpone it certainly. Okay, so let's talk a little bit about the role of the governor. What we have really is a completely unprecedented situation. We've never seen a situation like this in the country. I was reading an article written by Santosh Paul in the economic times on the 29th of April. Mr. Santosh Paul is a Supreme Court advocate where he clearly says the government is not the governor, the governor, though he's a political appointee, once he holds the post of governor, he becomes a constitutional authority and he should not act as if he is a spokesperson of a party. Now it's already fine to say all this and you yourself have gone on record saying that the governor has no option but to accept the recommendation of the cabinet of ministers and the nominated members are not part of some sort of a quota that he has. But whether we like it or not, everything becomes political. On the 29th of April, Mr. Uddhav Thakre spoke to Prime Minister Narendra Modi and he said and I'm quoting reports that there is an attempt to create political instability in the state. On Monday the 27th of April, the Maharashtra cabinet sent the governor a reminder to act on its earlier recommendation which was on the 9th of April. So 9th of April, 27th of April and then on Tuesday leaders of the coalition, the Mahavikas Agadhe coalition, the NBA coalition led by Mr. Ajit Pawar met Governor Kushary and why do I raise this question to you because it comes under, I mean there is a political backdrop whether we like it or not. There was a huge political controversy after the assembly elections took place in October 2019 and you know what happened though the pre-poll alliance of the shifts in and the BJP got a majority, the shifts in are broke away from the coalition. Then on the 23rd of November, Mr. Devendra Fandavish was sworn in as Chief Minister. Mr. Ajit Pawar was sworn in as Deputy Chief Minister following a spell of President's rule. But then less than four days later, they had to resign before the flow test and thereafter Mr. Uddhav Thakre was sworn in on the 28th of November. Given this political backdrop, you can't remove politics from the constitutional impasse or the constitutional crisis as well as the legal crisis that is currently brewing. So I'd like your views on this as well, Mr. Ajit. Well, there is always a political dimension, nobody can deny that. Now the each political party has its own calculations about their gains and losses. And accordingly they fashion their strategy. Now in this case, well it is mystifying why the governor is not seeking clarifications from the government. If the governor is concerned about the shortness of the term, if Mr. Uddhav Thakre is nominated and then again the crisis will come if the elections are not held. Naturally, the governor can seek a clarification from the government on this particular point. But that has not been done. It is very unusual for a cabinet to first make a recommendation for nomination and then repeat it after two weeks. It's very unusual because under the constitution, as I explained, the governor has to act on the advice of the consulate ministries. And if the governor has a reservation, he can seek clarification which has not happened. One minute. I'm just asking you, should he seek a clarification only from the Maharashtra government or should he seek a clarification from someone else? I mean, could he seek the opinion of others, outside experts, constitutional experts? I mean, who should the governor seek advice from? Because we are in a situation which is unprecedented. Well, by convention, the governor, in case he has some doubt about the proposal that has come before him, can seek a clarification from the consulate ministries about consulting other people, constitutional experts and all that. That is the description of the governor. Suppose the governor is constitutionally so well-versed, he doesn't have to consult anybody and he can make up his own mind without consulting any legal experts. It's okay. So, that he doesn't have to do in that case. But he is free to consult anybody he wants to arrive at a decision. That is okay. But by convention, he has to seek a clarification from the consulate ministries, which he has not done. That is what I was talking about. Okay. Mr. Tadi, I'll just take you back again. Some things have happened which have never happened before. I mean, on the 23rd of November, early in the morning, Mr. Devendra Vandamesh was sworn in. Mr. Ajit Bavar was sworn in. We got the prime minister of India taking over the powers of the cabinet and issuing and asking the president of India and early in the morning, all these things happen and it surprised a lot of people. But I'm seeing what is likely to happen now. I mean, we are not talking about any old state. We are talking about the state of Maharashtra, which is a very, very, very important state. I mean, Maharashtra is a large state and I mean, Mumbai is the financial capital of Maharashtra. There are 20 million people in Mumbai of which about 40% of them are migrant laborers. I mean, this is one of the most densely populated parts of the world. Now, one fourth of Mumbai lives in slums. We are talking about, you know, social distancing. And so, I mean, it's not that this is just merely a merely a legal issue or a political issue. I mean, there is a humanitarian angle as well. I mean, what according to you should the prime minister do under the circumstances? What according to you should the governor do under these unprecedented circumstances? This is my last question. I'd like you to give your concluding remarks. See, it is the responsibility of the governor to see that there is a stable government in office. That means the governor should not allow any instability to occur for any reason. So here, if there is a change of chief minister, for example, if the present chief minister goes because the governor could not act, that itself is an unprecedented situation. The governor is very well aware that the chief minister has to go if he is not elected to either of the houses on 28 May or before 28 May, he has to go. So that means there will be some instability, of course. And the governor has to see that there is no instability created from any quarter. And that is the responsibility of the governor. It is not a mere political kind of responsibility. It is a constitutional responsibility. And the constitutional assembly when they were discussing the powers of the governor, Dr. Ambedkar had made it very clear that it is the duty of the governor to see that there is a stable government in office. That duty is something you know, which the governor has to ask to discharge. But he must see. And from his side, nothing should be done which will create any kind of instability so far as the government is concerned. Now this is fine duty. Okay, I know I said it would be my last question, but I'm tempted to ask you a follow-up question. What you are suggesting is the ideal situation, but we don't live in a Utopian world. We know as I was discussing with you earlier, governors are political appointees, even if once they hold that post, they are constitutional authorities. There are innumerable examples of governors who have acted in a politically partisan manner. So what do you think could happen in this case? I mean, after all, here we have the chief minister calling up the prime minister, and if reports are correct, urging him to ensure that there is no political instability. And who could create political instability? The governor of Maharashtra Bhagat Singh Khushary. So we are in a very, very unusual, unprecedented situation. What could happen, Mr. Chary? Now for example, if political instability happens, so who is the beneficiary? That's a political question. Who is the beneficiary? Now looking at the political situation that prevailed before the formation of this government, then we would tend to think that the political parties are making their own calculations. Suppose the chief minister goes, if there is no nomination done by the governor, chief minister goes naturally. And then there will be another chief minister coming in between. You know, many things can happen in Indian politics. Many things can happen, even very unforeseen things can happen. And in that respect, politicians are many steps ahead of the ordinary, I mean, even intellectuals. We do not, we can't guess what they will do. So that situation is there. We can't say anything about it. But the situation is full of possibilities. When a chief minister goes and in the kind of situation that prevails in Maharashtra, when one chief minister goes, and then before the coming of another chief minister and before another chief minister is sworn in, a government is sworn in, many things can happen. These are all in the realm of speculation. I can't say anything for sure what will happen if the present chief minister goes. That is for the politicians to decide and act on. Thank you so much, Mr. P. D. T. Achary for speaking to me and for, on behalf of the viewers of New Slick, I thank you once again. Thank you very much. The former Secretary General of the Lok Sabha, Mr. P. T. D. Achary, discussed the legal and the constitutional issues behind the impending crisis in Maharashtra, whether or not Chief Minister Uttar Pradesh will be able to continue in his position after the 28th of May. And the political implications of instability in Maharashtra. Thank you very much for being with us and keep watching New Slick.