The Bombay High Court on Monday granted 10 days to the state government to file a reply to a PIL challenging Governor Bhagat Singh Koshyari’s decision on September 5, 2022 withdrawing the 12 MLC nominations recommended by the Maha Vikas Aghadi (MVA) government in November 2020. The court will next hear the PIL on August 21. The 12 posts of Member of Legislative Council (MLC), to be nominated by the Governor, have remained vacant for nearly three years. Advocate General Birendra Saraf, representing the state government, submitted before the high court that till date there are no new recommendations for the 12 MLC posts before the Governor. A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor was hearing a public interest litigation (PIL) by Shiv Sena (Uddhav Balasaheb Thackeray) leader and former corporator of Kolhapur Municipal Corporation Sunil Modi. On July 11, a Supreme Court bench headed by Chief Justice of India, Justice D Y Chandrachud, disposed of a special leave petition (SLP) filed by Nashik-based Ratan Soli Luth who had challenged the August 2021 high court order on the matter. The Bombay High Court bench headed by then Chief Justice Dipankar Datta (now a Supreme Court judge), in its August 13, 2021 order had said that it is “desirable” that Koshyari decides on the 12 nominations at the earliest, since more than eight months had already passed. It had added that it was the Governor's obligation to accept or return recommendations made by the cabinet within a reasonable time, and that seats in the Legislative Council “cannot be kept vacant indefinitely”. On September 26, 2022, a Supreme Court bench headed by Justice K M Joseph had said that the "matter needs consideration" and had directed Maharashtra government not to take any steps in connection with the vacant posts, and the same was continued from time to time till July 11. However, on July 11, keeping the question of law open, the apex court allowed intervenor Sunil Modi to institute independent proceedings, after which he approached the HC. The PIL argued by senior advocate Anil Anturkar stated that the Governor had exercised "illegal pocket veto" in refusing to act on the nominations made to the Legislative Council by the Council of Ministers for an inordinately long period of 1 year and 10 months. "This eventually enabled a subsequent government (Eknath Shinde-led government) in the state to withdraw the nominations made to the Legislative Council, which is otherwise impermissible under the constitutional scheme," the PIL claimed. On September 5 last year, the then Governor Koshyari had approved the Eknath Shinde-led government’s recommendation to withdraw the 12 names suggested by the previous MVA government led by Uddhav Thackeray in 2020 to be nominated as MLCs. Article 171(5) of the Constitution provides that members nominated to the Legislative Council by the Governor should be persons having special knowledge or practical experience in literature, science, art, cooperative movement and social service. The PIL, besides seeking to quash and set aside the September 2022 decision of the Governor, also sought from court to request the Governor to either nominate the 12 members recommended for the Legislative Council on November 6, 2020, or return the recommendation with the reasons recorded. Pending hearing of the PIL, the petitioner sought a stay on the appointment of MLCs to the 12 posts. AG Saraf opposed the PIL challenging its maintainability and submitted that there was no embargo on cabinet to recommend or withdraw recommendation. He added that the Governor had returned the recommendation file as there was no other recommendation pending after withdrawal. “Today, there is no recommendation before the Governor. The petitioner today cannot say that ‘recommendation is made, it should continue forever.' It is not his case that the Governor should have decided earlier," Saraf argued. “These are recommendations. It is not some change of policy. The same government can also change their recommendation. Once there is a change of government, the cabinet cannot be deprived of its power to reconsider, ” the AG added. The bench sought the government's detailed reply to the PIL.
