Unfortunate chief minister and governor do not trust each other: Bombay High Court on MLC nomination stalemate

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The court said that the two authorities holding the highest constitutional posts in state can sit together and sort the issues between themselves.

A division bench of Chief Justice Dipankar Datta and Justice Makarand S Karnik dismissed two PILs, including one filed by BJP leader and MLA Girish Mahajan, that challenged amendments made to the procedure of the election of the speaker in the Maharashtra Legislative Assembly.

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The Court said that amount deposited by petitioner Janak Vyas of Rs 2 lakh and Rs 10 lakh

by Mahajan in court as precondition to hear PILs stand forfeited.

Senior advocate Mahesh Jethmalani and advocate Subhash Jha for petitioners Mahajan and Vyas, respectively, argued that the amendments made to the procedure after proposed changes suggested by the rules committee to Rule 6 and Rule 7 of the MLA Rules, for the election of speaker and deputy speaker respectively, are “arbitrary,” “illegal” and “unconstitutional”.

By amended rules, the “secret ballot” system for election of speaker or deputy speaker of assembly has been replaced with an “open” voting system.

The post of the Assembly speaker fell vacant in February last year after Nana Patole resigned from the post and became the state Congress president.

The state government has proposed to hold the elections to the post of the speaker on March 9 and has sought the go-ahead of the Governor in this regard.

Jethmalani argued that the amendment allowed the Chief Minister alone to advise the Governor without consulting council of ministers, which was “unconstitutional”. Therefore, the amended procedure be set aside in view of “public interest,” he added.

Advocate General Ashutosh Kumbhakoni for state government opposed the pleas and said that same were not maintainable and wasted “precious judicial time”.

However, the bench observed that the “public is least concerned about procedures of legislature and who is going to be speaker of the assembly” and sought to know how the issue was worthy of PIL.

The court then referred to the stalemate between the CM and Governor over nomination of 12 Members of Legislative Council (MLC).

The HC, on August 13, last year, had said that it is “desirable” that Koshyari decides on the recommendations of the state Cabinet on nominating 12 members to the Legislative Council at the earliest.

The state cabinet, on November 6, 2020, proposed 12 names for nomination as MLCs under the Governor’s quota.

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

On Wednesday, the bench observed that Governor was yet to approve the  nomination despite the verdict passed by it nearly eight months back. “We are also a constitutional court. How have we been treated? We had passed an order on the 12 MLCs case. Today, we are in March 2022. Eight months have passed and still nothing has happened,” the HC said.

It went on to orally observe: “At the time, it had been argued that democracy will collapse etc. Has democracy died because the governor has not nominated 12 MLCs yet… Our democracy is not as brittle. Erase all these differences. Your ramblings do not take the state forward.”

“The unfortunate part is that the two highest functionaries do not trust each other. You both (Governor and CM) please both sit together and sort this out between yourselves,” it remarked.

The court also expressed displeasure over the suspension of 12 BJP MLAs for a year, which was later set aside by the Supreme Court. “You do not allow an elected member to reach out to voters, the public for a year. This is absolutely arbitrary,” said the court.

The court noted that it would not be appropriate for it to interfere in all matters of the legislature.

“….We all read… Here, the governor and the chief minister, we all think, are not on the same page. But who is suffering in all of this? We should have some faith in the governor’s decision. The CM is the head of the executive and he has to run the state. We cannot say either of the two are wrong here,” observed the court.