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Sunday, July 25, 2021

Bombay HC reserves order on PIL highlighting delay by Governor in deciding on MLC nominations

Governor has the discretion to decide on Cabinet’s proposal to nominate MLCs: Centre to HC

Written by Omkar Gokhale | Mumbai |
Updated: July 20, 2021 8:59:02 am
Bombay HCThe court had asked the Centre if the Governor did not have a duty to speak or react to the recommendation, irrespective of whether he may or may not accept the proposal, which was pending from November last year (file photo)

The central government Monday informed the Bombay High Court that under Article 171 of the Indian Constitution, the Governor of a state had the “power” to nominate members and, therefore, he had discretion on the same, too.

Additional Solicitor General Anil Singh, representing the Centre, said while the council of ministers had control over the influx of elected members, the decision on nominated members was solely under the Governor’s discretion where the Cabinet had no control.

“The power to nominate is not an executive function of the state government,” he submitted.

A division bench of Chief Justice Dipankar Datta and Justice Girish S Kulkarni, which concluded the hearing on a PIL highlighting a delay by Maharashtra Governor in taking a decision on nominating MLCs despite 12 names submitted by the council of ministers on November 6 last year, reserved its verdict on the plea.

The court had asked the Centre if the Governor did not have a duty to speak or react to the recommendation, irrespective of whether he may or may not accept the proposal, which was pending from November last year.

“Does the Governor not have a duty to speak? He may or may not accept the proposal. The recommendation has been sent and pending since November, last year. Is there any provision in the Constitution that says that the governor may not act at all?” CJ Datta questioned the Centre.

Justice Kulkarni, meanwhile, said, “The issue in the petition is simple. Any constitutional functionary is bound by the constitution. Any act which is not conforming to the constitution is an ultra-vires act. There is a constitutional duty that has not been followed… Can he keep the seats (of MLCs) vacant? Does it not go against the constitutional scheme?”

The PIL, filed by Nashik-resident Ratan Soli Luth, argued through senior counsel Aspi Chinoy, had alleged that the Maharashtra Governor had acted in “breach of” of constitutional provisions by failing to make nominations and the same was “arbitrary, malafide and deprived the legislative council of the benefit of such nominees having special knowledge in various fields”.

The bench will now pronounce its verdict in the case in due course.

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