No assembly, no oath, no government: Can Eknath Shinde be 'caretaker CM'?

The results of the Maharashtra assembly election were announced on 23 November, allowing political parties 72 hours to stake claim to form the next government. Normally, the largest party or pre-poll coalition would have met and elected a leader, who would have called on the governor to stake his or her claim to form the government.

However, chief minister Eknath Shinde called on the governor at Raj Bhavan on 26 November merely to submit his resignation. It was announced that he had been asked to continue as ‘caretaker’ chief minister.

With the victorious Mahayuti alliance having failed to elect a new leader for the past eight days — nine including today, 2 December — questions are being raised about the legitimacy of the ‘caretaker’ chief minister, since the Constitution makes no mention of any such ‘caretaker’, nor does it authorise the governor of a state to appoint one. So how has Shinde continued in his role is the question being asked.

Several lawyers seem to believe that the proper course before the governor was to inform the President that nobody had staked claim to form the government, following which the President should have promulgated President’s Rule in the state. Effectively, the administration would have begun to report to the governor and take permissions from Raj Bhavan. President’s Rule could have lasted for a week or 10 days or more, but it would have avoided the possibility of going against the Constitution.

Neither Shinde nor any other newly elected MLA has been administered an oath of office. Effectively, there is no assembly in the state as of now and therefore, no government. The question being asked is whether the self-appointed ‘caretaker’ chief minister has been attending office, receiving officials, signing files and taking decisions during this period. If the answer is in the affirmative, it raises the tricky question of Constitutional validity.

Again, neither the media nor the Opposition have raised the issue because of the overwhelming verdict in the election, which gave the ruling coalition a two-thirds majority. With the next government having been decided, Constitutional propriety and legality are of academic interest, it is felt.

However, as per Constitutional provisions, no member of the previous assembly can continue as interim or caretaker chief minister after the expiry of five years. This is one of several reasons why assembly elections are always held slightly ahead of the expiry of the five-year period, and the Election Commission has the authority to hold elections at any time during the last six months of the life of an assembly.

The life of the last Jharkhand assembly, for example, expires only on 4 January 2025. In Maharashtra, the commission delayed the election until the very last moment for political reasons, though it cited festivals as the reason.

So the question is whether the President of India, the governor of the state and the Election Commission itself are guilty of flouting Constitutional provisions. The jury is still out.