"Is Governor not bound by his Constitutional duty?" asks Bombay High Court, reserves order in PIL on nomination of members to Legislative Council

The Bombay High Court on Monday reserved its verdict in a plea seeking Court's intervention in Maharashtra Governor Bhagat Singh Koshiyari's inaction to nominate the twelve members recommended by the Maharashtra Council of Ministers to the State Legislative Council.

. During the course of hearing, the Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni asked the counsel to respond on the following issues:

Whether Governor had a right to remain silent in his discretion when he has a duty to fill up all the members of the legislature; and

In the event there was inaction by the Governor, could that be challenged before a constitutional Court as an act ultra-vires the Constitution?

. The Court was hearing a public interest litigation (PIL) petition filed by social worker Ratan Soli Luth against Koshiyari's inaction to take a decision on the recommendations made by MLC.

. The Bench also asked the parties to respond if the text in the provisions pertaining to the duties of the Governor is in fact a dead letter if the Governor cannot respond by when will he perform his constitutional duty.

"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 which has not been followed. Can he keep the seats vacant? Does it not go against the constitutional scheme?"

. Luth's petition sought a declaration from the Court that "the Governor is constitutionally bound to act on and in accordance with the advice of the Council of Ministers and to make nominations as stipulated under Article 171(5) of the Constitution.

. Senior Advocate Aspi Chinoy , appearing for Luth, submitted that through the Governor cannot be made a party to the case, his actions or inaction were subject to judicial review.

His contention was that the Governor did not enjoy ‘discretion’ to nominate the members to the Maharashtra Legislative Council (MLC) and was bound by the advice of the Council of Ministers.

. Senior Advocate Rafique Dada appearing for the Maharashtra government stated that the the Governor has only two options - to either accept or reject such recommendation; and that there exists no third option.

. Referring to the Maharashtra Government Rules of Business and Instructions which was formulated by the Governor of Maharashtra, he argued that since the issue of nominations were mentioned in Rule 15, it implied that the Governor did not enjoy discretion on the issue.

. Dada argued that due to the "inaction" of the Governor, specific posts in the legislature have been vacant for over a year.

"The Governor has received the nominations from the channel he has formulated in the Rules of Business. He cannot just sit tight on the file and not do anything," Dada submitted.

. Additional Solicitor General Anil Singh argued that as per Article 171 of the Constitution, the Governor has 'power' to nominate the members, hence there was discretion involved.

. Singh submitted that the provisions pertaining to the elected members to the legislative council is stipulated in Article 171 (3) (a) to (d) whereas only the nominated members are provided for in Article 171(3)(e).

He argued that while the Council of Ministers has a control over the influx of elected members, the nomination of members is solely under the Governor's discretion where the Council of Ministers having no control.

. Responding to Singh's arguments, the Court opined that,

"What is of emphasis is power, we agree. But with power, there is a corresponding duty. If the Council of Ministers do not recommend any names to the Governor, he will not be required to decide. But if the names are forwarded, then has a duty - mandatory (to accept) or discretionary (to send back) - but there is no escape from the conclusion that something has to be said".

. After hearing all counsel in the matter at length over a period of 2 days, the Court reserved the matter for orders.

"Is Governor not bound by his Constitutional duty?" asks Bombay High Court, reserves order in PIL on nomination of members to Legislative Council

Neha Joshi

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