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Friday, September 17, 2021

Nominations to Legislative Council: Desirable that Governor decides on govt’s recommendations soon, says HC

The HC held and declared a public law that the obligation of the Governor to accept or return the recommendation by the state council of ministers has to be discharged within a reasonable time.

Written by Omkar Gokhale | Mumbai |
Updated: August 14, 2021 11:49:31 am
Maharashtra Governor Bhagat Singh Koshyari and Uddhav Thackeray.(Express Archive)

The Bombay High Court on Friday said that it is “desirable” that Maharashtra Governor Bhagat Singh Koshyari decides on the recommendations of the state Cabinet on nominating 12 members to the Legislative Council at the earliest.

This comes nine months after the Cabinet proposed 12 names to the Governor on November 6, last year, for nomination as MLCs under the Governor’s quota.

The court said the Governor should speak to Chief Minister Uddhav Thackeray regarding his reservations on the list of nominees, if any, within reasonable time, else the “statutory intent will stand defeated”.

It added that it was the Governor’s obligation to accept or return the recommendations made by the Cabinet within a reasonable time and that seats in the Legislative Council “cannot be kept vacant indefinitely”.

The court further said that while the Governor might have genuine reasons not to convey his decision earlier, the issue has to be resolved at the earliest. “Whatever be the reason, it is time that the impasse is resolved… Eight months seems to be beyond reasonable time.”

The HC said minor differences of opinion should be resolved and if there are major differences between the Governor and the CM, they have to “iron out” the same. “It is mature, sensible and responsible governance… that people look up to. Should there be any misunderstanding between two constitutional authorities or functionaries, right steps in the correct direction ought to follow,” the court observed.

It said that the offices of Governor, chief minister and ministers are “entitled to respect from each other” despite “ever-expanding uncertainties of political unrest”.

“What would be reasonable time would depend on the facts of each case. This court, having regard to the gravity of the issue involved and the necessity to fill up the vacant seats expeditiously, would consider it eminently desirable if the obligation, in the present case, is duly discharged without undue delay. We express hope and trust that things will be set right at an early date,” a division bench of Chief Justice Dipankar Datta and Justice Girish S Kulkarni said.

The bench clarified that the court cannot pass directions to the Governor, as he is not answerable to it under Article 361 of the Constitution.

The court said that constitutional functionaries and authorities “ought to stand tall and rise above all differences of opinion” and “arrive at a workable solution as quickly as possible”.

“It would not behove the dignity, prestige and majesty of the office of a constitutional authority/functionary to take shelter of absence of a time limit to act in terms of a provision of the Constitution, so as to defend an inaction when it is challenged in a constitutional court.”

It added, “It is with prompt and effective resolution of differences of opinion… to take the nation forward that the respective incumbents would glorify the offices they hold, and not otherwise.”

The HC was hearing a public interest litigation (PIL) filed by Nashik-based Ratan Soli Luth seeking direction to the Governor to decide on the Cabinet recommendations argued through senior counsel Aspi Chinoy. The bench had reserved its verdict on July 19 and pronounced it on Friday.

Article 171 (5) of the Constitution provides that members to be nominated to the Legislative Council by the Governor shall consist of persons having special knowledge or practical experience in literature, science, art, cooperative movement and social service.

The list submitted by Thackeray last November included the names of Eknath Khadse, Raju Shetti, Yashpal Bhinge and Anand Shinde from NCP; Rajni Patil, Sachin Sawant, Muzaffar Hussain and Anniruddha Vankar from Congress as well as Urmila Matondkar, Nitin Bangude-Patil, Vijay Karanjkar and Chandrakant Raghuvanshi from Shiv Sena.

The government has told HC that the Governor was duty-bound to make nominations “strictly based on the advice of the council of ministers’” and that he “has not respected” the recommendations. Senior counsel Rafique Dada, representing Maharashtra, has said that as per the Constitution, the Governor can either accept or reject such recommendations but there cannot be a “third illusionary and non-existent option”.

The Union government has informed the HC that under Article 171 of the Constitution, the Governor of a state has the power to nominate members and, therefore, has discretion on the same too. Additional Solicitor General Anil Singh, representing the Centre, told HC while the Cabinet had control over the influx of elected members, taking a decision on nominated members was solely the Governor’s discretion. “The power to nominate is not an executive function of the state government,” he added.

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