[Nomination of members to State Legislative Council] Bombay High Court seeks Attorney General's response in challenge to Article 171(3)(e)

Court was approached with a plea challenging the constitutional validity of Article 171(3)(e) laying down the procedure for nominating the members to the Maharashtra Legislative Council
[Nomination of members to State Legislative Council] Bombay High Court seeks Attorney General's response in challenge to Article 171(3)(e)
Attorney General KK Venugopal

The Bombay High Court on Tuesday sought the response of Attorney General KK Venugopal on why Article 171(3)(e) of the Constitution, which provides for nomination of members to the Legislative Council of a State, should not be declared unconstitutional.

A Bench of Justices RD Dhanuka and Madhav Jamdar issued notice to the Attorney General in petitions filed by two social workers, Diliprao Panditrao Agale and Shivaji Patil challenging the validity of the Article.

The Article was assailed on the ground that it lays down no procedure for nominating the members to the Legislative council, thereby, bestowing uncanalised, unbridled, uncontrolled power upon the Governor or the Council of Ministers to make nominations.

The plea stated that even though there was an answer to who can be considered for MLC nomination, there was no answer under Article 171 or in any other provisions as to “what should be the basis of the criteria or parameter or the test to select the candidates for nomination by the Governor.”

Therefore, the power to nominate members by the Governor may be on the aid of the Council of Ministers which was arbitrary, unguided, whimsical, unfair and discriminatory, it was submitted.

It was the petitioners' contention was that it was open to the Chief Minister or Council of Ministers to choose or pick up the members to be nominated as per their whims or fancies.

The petitioners submitted that the nominations made so far were a ‘fraud on the constitution’.

"If the past experience is any guide, most members nominated to the State Legislative Council by the Governor of Maharashtra did not possess either special knowledge or practical experience in the field of literature, science, art… the power to nominate the members to the Council has been exercised either for political considerations or considerations which are wholly extraneous," the petition said.

Advocate Satish B Talekar, appearing for the petitioners, argued that such uncontrolled power vested with the Governor results in gross arbitrary exercise of the same, thereby, defeating the very principle of rule of law which is a basic structure of the Constitution of India.

He further argued that Article 171(3)(e) empowering the Governor, who is a executive head, to make nominations to the Legislature amounts to interference with the autonomy of the Legislature and is violative of the fundamental principle of separation of powers.

The Court issued notice to State of Maharashtra and Union of India and also sought Attorney General's assistance.

The case is likely to be heard next on January 14, 2021.

[Read order here]

DP Agle, SH Patil v. State of Maharashtra.pdf

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