Article 164: The conundrum surrounding the Chief Ministerial post in Maharashtra


The state of Maharashtra, known for its good governance and political stability, has been marked by political precariousness for months. It all began with the result of the elections for the 14th legislative assembly, whereby the post-poll alliance of NCP, Indian National Congress (INC) led by Shiv Sena, agreed to name Shri Uddhav Thackeray as the Chief Minister, who accordingly took oath on November 29, 2019. The state had just recovered from this tug of war for power and is now faced by another crisis. Udhhav Thackeray was appointed as the Chief Minister although he wasn’t a member of either the State Legislative Assembly or the Legislative Council. This is allowed by virtue of Article 164 of the Indian Constitution. According to Article 164(4), he shall cease to be the CM within six months of his appointment i.e. May 28, 2020, if he fails to secure a seat as a Member of Legislative Assembly (MLA) or Member of Legislative Council (MLC).

The MLC elections for nine seats that had fallen vacant, were scheduled to be held on April 24. The Election Commission of India postponed the elections to an uncertain date due to the ongoing Covid-19 pandemic. Therefore, the sole route for Thackeray was to get nominated as an MLC and accordingly a recommendation was sent to the governor by the Council of Ministers. The governor wrote to the ECI requesting for the MLC elections to be held. The ECI obliged and the elections are now scheduled to be held on May 21,2020. This, to an extent, has checked the prevailing uncertainty. Nevertheless, it is important to examine the point of law governing the dicey situation that preceded the announcement of MLC elections by the ECI.


Article 171(5) of the Indian Constitution empowers the Governor to nominate 12 persons having special knowledge or practical experience in respect of matters such as literature, science, art, co-operative movement and social science to the State Legislative Council. Here the role of the governor becomes vital. As per Article 163, the Governor has to act on the aid and advice of the Council of Ministers. The Council of Ministers of Maharashtra, on April 9, sent a communication letter to Governor Bhagat Singh Koshyari recommending that Thackeray be nominated as an MLC and reiterated the same on April 27. The Governor didn’t act on this proposal. This gave rise to suspicions that the move is aimed at pressurising and embarrassing the incumbent CM of Maharashtra and allowing the BJP to offer further allurements to the members belonging to the ruling party to seek their defection. On these grounds, the petitioner Surinder Arora has moved the Bombay High Court seeking that the proposal is acted upon with haste.

The Governor isn’t in favour of this nomination as the term of the two seats in the Legislative Council would end on June 5, after which Thackeray would have to get elected again. However, any further delay in nominating Thackeray or at least taking a decision on the proposal of the Council of Ministers would be detrimental to the public interest, the administration and the political stability in the state. The Supreme Court, recently in Shivraj Singh Chouhan v. Speaker, Madhya Pradesh Legislative Assembly, held that the Governor’s power isn’t intended to destabilise or displace a democratically elected government accountable to the legislative assembly and collectively responsible to it.


HD Gowda (the 11th Prime Minister of India, 1996-1997), who wasn’t a member of either house of Parliament, was appointed as the Prime Minister of India. This was challenged in SP Anand, Indore v. HD Deve Gowda & Ors., wherein the Supreme Court clarified that a non-member can be appointed as the Prime Minister because parliamentary democracy demands collective responsibility of the ministers towards the legislature. Further, the constitutional design of such appointment has been fairly validated during the constitutional assembly debates. Dr BR Ambedkar rightly said that “it is perfectly possible to imagine that a person who is otherwise competent to hold the post of Minister has been defeated in a constituency for some reason”. He further reiterated that a member so competent should be appointed on the assumption that he shall be able to get himself elected either from the same constituency or from another constituency.

The ambit and scope of Article 164(4) were examined by a Constitution Bench of the Supreme Court in Har Sharan Verma v. Tribhuvan Narain Singh. In this case, the appointment of TN Singh as Chief Minister was challenged as he wasn’t a member of either House in the State of UP. The Court, while interpreting and applying Article 164(4) held that in exceptional cases where a Minister is not a member, he can continue to be a Minister for a period of six months during which he must get himself elected in order to continue as a Minister.

This issue was raised again in Har Sharan Verma– II. In this case, the petitioner argued for a limited interpretation of Article 164(4). It was argued that Article 164(4) is intended to cover the case of a member of the Legislature at the time of appointment as Minister or Chief Minister but later on ceases to be a member of the legislature. The court ruled out this interpretation and held that there is nothing in the clause to suggest the same. Article 164(4) stipulates that “a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister”. The Court held that the words are not “a Minister who does not remain a member of the Legislature for any period of six consecutive months”, but are “a minister who is not a member of the Legislature of the State for any period of six consecutive months”. If the word ‘remain’ were there, then only the provision could have implied that the Minister was a member at the time of appointment.

The scope of Article 164(4) has been limited by the Supreme Court in SR Chaudhari v. State of Punjab. The Court, in this case, held that the re-appointment of a non-member as a Minister would amount to subversion of the constitutional guarantees. These views were reiterated by the Court in Asok Pande v. Mayawati. BR Ambedkar was also very clear on his proposition that such a constitutional privilege extends only till 6 months. Further, there are limitations on the entitlements of the individual who has been appointed as a Minister without becoming a member of the legislature i.e. such a non-member including a Minister, isn’t allowed to vote in the proceedings of the House.


Good governance is the soul of democracy. It is impossible to secure and protect social order without good governance. The Supreme Court, in Shamsher Singh v. State of Punjab, explained the limitation of the Governor in the matter of advice tendered by the Council of Ministers. The Governor has a duty to act constitutionally and the Indian Constitution expects the governor to act on the aid and advice of the Council of Ministers who in this case have duly rendered their advice. Undoubtedly, Article 171(5) doesn’t prescribe any time limit to nominate the persons as members of the State Legislative Council by the Governor, however, the exigency of the matter at hand requires the Governor to act on the proposal within a reasonable time frame. This is a situation of exigency because the discretion of the Governor is extremely sensitive, as the nomination implies granting and non-nomination would imply depriving a person of the Chief Ministerial Post. Further, the decision of the Governor is always amenable to Judicial scrutiny. The Election Commission of India (ECI) has announced that MLC elections will be held on May 21. This comes as a sigh of relief to the Maharashtra Government. However, the uncertainty that preceded this decision of the ECI can’t be ignored.  The two questions of law raised in Surinder Arora’s petition remain to be pertinent: Firstly, whether the Hon’ble Governor can sit over the decision of the Council of Ministers in the matters of recommendations for nominating members under Article 171(5) of the Constitution of India? Secondly, whether the inaction on the part of the Governor in deciding the proposal submitted by the Council of Ministers is contrary to the scheme of the Constitution of India?


Ishani Shekhar


Ishani Shekhar is a first-year student of Gujarat National Law University pursuing B.A. L.L.B. (Hons.). She possesses a keen interest in Criminal law and Constitutional law.

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