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Governor can’t use ‘delaying tactics’ on advice of Council of Ministers: Experts

"In matters of the Constitution, personal discretion has no place. Yes, the Governor can use constitutional discretion. And in this case, where it concerns nomination of members to the Legislative Council, the Governor can use constitutional discretion."

Written by Manoj Dattatrye More | Pune | December 14, 2020 11:26:24 pm
nominations of Legislative Council members, Uddhav Thackeray, Bhagat Singh Koshyari, Pune news, Maharashtra news, Indian express newsMaharashtra Governor Bhagat Singh Koshyari. (File)

A day after Chief Minister Uddhav Thackeray questioned the use of discretionary powers by Governor Bhagat Singh Koshyari regarding approving the nominations of 12 members to the state Legislative Council, constitutional experts said the Governor would be violating the Constitution if he resorts to “delaying tactics” on the recommendations made by the Council of Ministers.

“In matters of the Constitution, personal discretion has no place. Yes, the Governor can use constitutional discretion. And in this case, where it concerns nomination of members to the Legislative Council, the Governor can use constitutional discretion,” said constitutional expert Ulhas Bapat.

This constitutional discretion, said Bapat, should be reasonable. “It means he can take his time in approving the names recommended by the Council of Ministers, but only within a reasonable period of time. That reasonable time, however, can’t exceed two or three weeks. It can’t be extended to an indefinite period of time..,” said Bapat.

The advice of the Council of Ministers, said Bapat, was binding on the Governor under Article 163 of the Constitution. “… in this case, the advice of the Council of Ministers is binding on the Governor. There is no question of personal discretion coming into play. He will have to go by the advice of the Council of Ministers…,” he said.

Bapat said Koshyari has, even in earlier instances, behaved less as a constitutional head and more like a political leader. “In the past, the Governor has acted as if he was the political leader and not a constitutional appointee as he tried to question the Cabinet’s decision. This is an attempt to violate the Constitution. While holding a constitutional post, a Governor should be adhering to constitutional norms and not resort to political machinations, which is tantamount to committing fraud on the Constitution,” said Bapat.

At a press conference on Sunday, the Chief Minister had said, “We have recommended 12 names to the Governor. If there is a time limit for retirement of members, then there should also be a time limit on their nominations. It seems like we will have to make a provision in the Constitution for setting time limit for nominations of the members. While we acknowledge a Governor’s powers, can the Governor use this right as per his own discretion… There is a difference between discretion and right. He should understand that…”

Former High Court judge, Justice B G Kolse-Patil, said, “A decision or a recommendation made by the state Cabinet can’t be disregarded by the Governor, it is binding on him. A Governor is a powerless constitutional head. He has to put his stamp on the recommendation of the Cabinet. He can’t sit on it, using his discretion, for any length of time. If he does that, he not only violates the Constitution but is also trying to trample upon democracy.”

Kolse-Patil said the Governor has to work in the interest of the state as a constitutional head. “Here, it seems he is holding a brief for a political party. The interest of a political party seems to be paramount for him. The Governor should not play politics as he is not a political person. He should leave politics to political parties. A person might have a political background. But once he or she is appointed as the Governor, they should forgot their political allegiance… they are duty-bound to uphold the constitutional norms. But in case of Koshyari, he does not seem to have any regard for constitutional norms as he continues to disregard the advice of the council of ministers,” said Justice Kolse-Patil.

Advocate Sushil Mancharkar said, “The Governors can use constitutional discretion when they have to recommend President’s rule in the state.. Also, they can use constitutional discretion when they have to reserve a bill for the consideration of the President . In such cases, governors can decide on their own without the advice of the Council of Ministers.”

He pointed out that a five-judge Constitution bench of the Supreme Court, in the Nabam Rebia versus Deputy Speaker case, had held that a Governor’s discretionary power “is extremely limited and entirely liable to judicial review.

“Under Article 163 of the Constitution, the Governor has no general discretionary power to act against the advice of his Council of Ministers. In this present case, not accepting the recommendation or using delaying tactics is like going against the advice of Council of Ministers, which is unconstitutional,” he said.

Shiv Sena MP Sanjay Raut said, “There has been no word from the Governor’s office regarding the names recommended by the state Cabinet. We will give the Governor time till January. Apparently, he wants to study the matter before taking a decision. Let him carry out his study…” Raut said, adding that the names were submitted to Koshyari more than a month ago.

On the Chief Minister’s remarks, that there should be a Constitutional provision vis-a-vis time limit for the Governor to act on the Cabinet’s recommendations, Raut said, “We are exploring this possibility. Indeed, there should be a time limit. The Governors in the country can’t take decisions on their whims and fancies. The law should govern all their action. If the Governor has been given certain rights and discretions, then those should be used within a reasonable period of time.”

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