Why in News?

• Maharashtra CM Uddhav Thackeray may end up losing his seat if he is not elected to the Legislative Council of the state before May 24^th.

About the News:

• He took the oath of his office on November 28, 2019 without being a member of either the State legislature or council.
• But, he will have to get elected to either of the houses of the state legislature before May 24, as Article 164(4) of the Constitution stipulates.
• However, the Election Commission has already postponed Rajya Sabha polls, by-elections and civic body elections in the wake of COVID-19 pandemic.

What does the Constitution Say?

• Article 164of the Constitution allows a non-legislator to occupy a post in the council of ministers, including the office of the Chief Minister for Six Months.

What’s the Alternative Available Now?

• Article 171of the Constitution says the governor can nominate eminent persons from the field for literature, science, art, cooperative movement and social service.
• Uddhav Thackeray does not directly fit into any of the criteria mentioned but social service has a wider scope. And, if governor nominates somebody to the legislative council, his/her decision cannot be challenged in the court, at least as of the precedent right now.
• The Maharashtra legislative council has two vacancies to be filled by governor’s nominations.

What is the Issue Now?

• Section 151A of Representation of the People Act 1951puts a bar on the governor’s discretionary power to nominate a person to the legislative council.
• It says election or nomination to vacant seats in the legislative council cannot be done “if the remainder of the term of a member in relation to a vacancy is less than one year”.
• The tenure of the two vacancies that arose on the account of resignations by members recently ends in June. So, the remainder of the term is less than a Year.

What’s the Scope Now?

• Uddhav Thackeray cannot continue unless elected to any of the houses of Maharashtra legislature after May 28.
• Technically, he can be reappointed as the Maharashtra chief minister again after he resigns on May 27 or 28 and takes oath afresh.
• But, if Uddhav decides to resign and takes oath afresh, there could be another obstacle. This relates to a case in Punjab, where Tej Parkash Singh of the Congress was appointed a minister in 1995 and was reappointed at the expiry of six months’ period in 1996 without getting elected to state assembly.
• Litigation followed in 2001, the Supreme Court declared the resign-and-reappoint bid as “improper, undemocratic, invalid and unconstitutional”.
• This judgment did not have a bearing on Tej Parkash Singh but may come in the way of Uddhav Thackeray if he takes the Same Route.