The main opposition party in Maharashtra, the BJP, has argued that Thackeray’s nomination to the legislative council would be in violation of the Representation of the People Act.
In the midst of the pandemic, Maharashtra is staring at a building political crisis. Chief Minister Uddhav Thackeray will have to vacate his office if he fails to get elected or nominated to the state legislative assembly or council before May 27. Thackeray was sworn in on November 28 last year, and as per the law, must become a member of the House within six months, in this case, before May 27. Since the Election Commission has deferred all elections, including to nine legislative council seats in Maharashtra, in the wake of the COVID outbreak, the ruling coalition has proposed that Governor Bhagat Singh Koshyari nominate Thackeray to a vacant seat in the legislative council. The governor has been silent on the proposal, though the state cabinet made a formal recommendation, first on April 9 and then, on April 27. On Thursday, however, he requested the EC to declare elections to the nine legislative council seats “at the earliest”. It is important that a prolonged political impasse is avoided in a state in which COVID is taking a high and mounting toll. At the same time, it is also imperative that a solution is found only through due process, and not by short circuiting it, or by setting a precedent that could return to haunt, and be misused.
The main opposition party in Maharashtra, the BJP, has argued that Thackeray’s nomination to the legislative council would be in violation of the Representation of the People Act. The RPA mandates that a vacant seat be filled only if the remainder of the term extends to at least a year – the term of the seat proposed for Thackeray ends in June. However, some constitutional experts have argued that the cited law applies only to by-elections, and not nominations. It is for the courts to clarify the law. But a resolution – whether by the nomination route, or the holding of election – needs to be reached quickly, taking into account the context, while adhering to due process. If the COVID crisis had not unfolded, it would not be wrong to say that, given the ruling Maha Vikas Aghadi’s numbers in the assembly, Thackeray’s election to the legislative council was a fait accompli.
The Election Commission could find a way of holding the deferred elections to the nine council seats in Maharashtra immediately. There may be logistical issues due to the COVID restrictions, but the EC could explore innovative solutions. Elections to the council require only the MLAs to vote and polling could be held without making them congregate in the House. Most importantly, all the stakeholders must avoid the temptation to politicise or prolong the uncertainty.