Maharastra is in the news for the unenviable distinction of having the most number of coronavirus cases and related deaths. As the State meets this challenge, another crisis, this time a constitutional one, threatens to destabilise or at least facilitate political and constitutional uncertainty

Uddhav Thackeray, Shiv Sena Party chief, was appointed Maharashtra’s Chief Minister in November 2019. At the time, he was not a member of the State legislature. While it is constitutionally permissible for any person to hold ministership without being a member of the State Legislature, Article 164 (4) makes it mandatory for him/her to be elected to either Houses of the State Legislature within six months of ministerial appointment. Thackeray’s deadline was May 2020.

Due to COVID-19, the Election Commission has postponed by-elections that would have otherwise secured Thackeray’s Chief Ministership. The only option left for Thackeray now is to get nominated to the State’s Legislative Council. Two weeks ago, the Maharashtra State Cabinet made this recommendation to the Governor. But the Governor B.K. Koshiyari has not moved on this. The Shiv Sena alleges that Koshiyari’s proximity to its political rival BJP is the cause for this.

The constitutional question at play here is: can the governor exercise his or her discretion independent in his/her capacity to nominate members to the State Legislative Council? Is he bound by the State Cabinet’s recommendation?

Article 171  of the Constitution of India, 1950 gives the State Governor the power to nominate members to the Legislative Council. Such nominated persons should have special expertise or practical experience in ‘literature, science, art, co-operative movement or social service’.

The discussion in the Constituent Assembly on Draft Article 150 (Article 171, Constitution of India, 1950) primarily focused on the categories of the subject matter expertise that a nominee had to meet. However, when it came to the Governor’s power to nominate, KT Shah believed that the Governor would act ‘presumably on the advice of the party in power.’

The Constituent Assembly did not directly address whether the Governor could use his/her discretion independently. Perhaps, as evidenced in Shah’s speech, there was an underlying assumption that the Governor would base his/her decisions on the advice of the State Executive.

Two years after the Constitution came into force, before the Calcutta High Court, in Biman Chandra Bose v. Dr H.C. Mukherjee., the Petitioner challenged nominations to the State Legislatures made by the Governor. The Court, while examining Governor’s discretionary power under Article 171, observed that he/she cannot choose the nominees: The Governor is bound by the advice of the State Cabinet. While this case law might clarify the role of a Governor relating to nominations, it does not constitute a precedent for other High Courts or the Supreme Court.  

Another constitutional provision that crafts the relationship between the State Executive and the Governor is Article 163. It puts forth how the Governor is required to discharge all his functions under the Constitution. It notes that generally he/she should act as per the aid and advise of the Council of Ministers including the Chief Minister. However, it carves out an exception that allows the Governor to act solely based on his/her will: The provisions in the Constitution must specifically mention such use of discretion. One such example includes Article 239 which deals with Administration of Union Territories. This article explicitly states that the Governor ‘shall exercise his functions as such administrator independently of his Council of Ministers’.

Based on Biman Chandra Bose and the reading of Article 171, one can argue that the Constitution did not confer the Governor an independent ability to choose nominees to the State Legislature. This function can only be discharged based on the State Executive’s recommendation.

The Maharashtra episode is yet another tale of the office of the Governor (generally considered to be an apolitical office) being transformed into a cite of political controversy.