Justice Abhay Thipsay, a retired judge of the Bombay High Court, has raised questions over the appointment of Radhakrishna Vikhe-Patil and Jaydutt Kshirsagar as ministers in the Maharashtra government. Their appointment is in violation of principles of democracy and constitutional provisions, he said.
Mr. Thipsay, now a member of the Congress, said, “Mr. Vikhe-Patil was elected MLA on a Congress ticket from Shirdi in 2014. He then became the Leader of Opposition. Mr. Kshirsagar was elected a Nationalist Congress Party (NCP) MLA from Beed in 2014.”
He said Mr. Vikhe-Patil and Mr. Kshirsagar were MLAs till they resigned from their original parties and joined the Bharatiya Janata Party and the Shiv Sena, respectively. “Since they resigned from the parties from which they were elected to the Assembly, they also resigned as MLAs. But on joining the new parties, they were inducted as ministers in the State Cabinet. This is patently illegal.”
He said, “By the Constitution (91st Amendment) Act, 2003, Clauses (1A) and (1B) were inserted in Article 164, which provide for appointment of Chief Minister and other ministers. Clause (1B) states that a member of either House of the legislature of a State, belonging to a political party, who is disqualified for being a member of that House under paragraph 2 of the 10th Schedule shall also be disqualified to be appointed as a minister for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire.”
Paragraph 2 of the 10th Schedule provides for ‘disqualification on the ground of defection’. One of the grounds of such disqualification vide Clause (a) of paragraph 2 is “if he has voluntarily given up his membership of such political party.”
Since Mr. Vikhe- Patil and Mr. Kshirsagar have given up the membership of their respective parties, they are disqualified for being members of the House.
In view of Clause (1B) of Article 164, they are therefore disqualified to be appointed as ministers for duration of the period commencing from the date of their disqualification till the date on which the term of their office as such members would expire.
“Since the term of their office as members would have expired on November 9, 2019, both Mr. Vikhe-Patil and Mr. Kshirsagar would be disqualified for being MLAs till that date and by virtue of Clause (1B), there remains no doubt that when they are disqualified for being a member of the legislature, they cannot be appointed as ministers during the term of such disqualification. Thus, this is in direct violation of the constitutional provisions,” he said.
He said, “By virtue of paragraph 2 of the 10th Schedule of the Constitution, they are automatically disqualified to continue as members of the State legislature. Apart from this, Article 164(4) only permits a person to be a minister for a maximum period of six consecutive months without being a member of the legislature.”
Mr. Thipsay also said in the present case, the duration of the Assembly is less than six months and therefore. Mr. Vikhe-Patil and Mr. Kshirsagar can continue as ministers till the duration of the legislature is over without requiring to face elections.
Justice Thipsay said this is against the spirit of the constitutional provisions. Even otherwise, under Section 151 A of the Representation of People’s Act, 1951, by-election is not necessary as the remaining duration of the current Assembly is less than six months.
He said, “Nevertheless, even if the issues of propriety are kept aside, that the appointments are in plain violation of the constitutional provisions, cannot be ignored. If these persons are not disqualified from being ministers, judicial interference in the matter would be permissible, by issuing an appropriate writ.”
Mr. Thipsay said, “Article 164 (4) of the Constitution puts some restriction on continuation of such persons as ministers by laying down: a minister, for any period of six consecutive months is not a member of the legislature of the State, shall be, at the expiration of that period cease to be a minister.”
