Governor Has Duty To Decide On Recommendations Of Council Of Ministers For MLC Members Nomination Within Reasonable Time : Bombay High Court

The court disposed of a PIL against the Governor, Bhagat Singh Koshyari's " inaction " in nominating members to Maharashtra's Legislative Council (MLC), despite the 12 names submitted by the Council of Ministers on November 6, 2020. The bench said that eight months was more than enough time in the particular facts of the case

A bench of Chief Justice Dipankar Datta and Justice GS Kulkarni observed that while directions could not be given to the Governor under Article 361 of the Constitution, it hoped that things would be set right at an early date.

"This court having regard to the gravity of the issue involved and the necessity to fill up the vacancies as well as to subserve the aims set by the constitution would consider it desirable if the application in the present case is discharged without undue delay."

"This court, therefore, concludes the judgement by making a public law declaration that the obligation which the constitution vests in the Governor to either accept or return the recommendations of the Council of Ministers forming part of advice has to be discharged within a reasonable time. Eight months on facts seems to be beyond reasonable time."

The bench held that the seats of the members in the legislative council who are required to be nominated by the Governor cannot be kept vacant indefinitely without there being a justifiable cause and much to the detriment of legislative functions

"In such circumstances this court is of the clear view that the duty of Governor to speak and to let the Chief Minister know the Governor's reservations about the recommendees, if at all, within a reasonable time has to be read in section 10(2)(c) of the Representation of the People Act read with clause 5 of Art 171 or else the statutory intent would stand defeated."

What would be a reasonable time, however, must depend on the facts of each case, the court added.

It reserved orders on petitioner Ratan Soli Luth's plea on July 19, 2021.

The bench further said that if there is a misunderstanding between two constitutional authorities, the differences should be ironed out.

"If the saying that everything happens for a reason is to be believed, this court ought to assume that there were genuine reasons for the Governor not to convey his decision earlier. Whatever be the reason, it is time that the impasse is resolved. It is mature sensible and responsible governance both at the Centre as well as in the States.

Should there be any misunderstanding between two constitutional authorities or functionaries right steps in the correct direction ought to follow.

If there are minor differences of opinion the same ought to be resolved. Including a discussion between the Governor and Chief Minister in the guiding spirit of the constitution. If there are major differences, the same have to be made known for ironing out such differences."

During the hearing, the court repeatedly asked the Union if the Governor could escape from his duty by not deciding on the names recommended by the council of ministers.

The plea alleged that the Governor, in breach of his constitutional obligation, failed to act on the recommendation of the Council of Ministers sent in November 2020, and is yet to take a decision on the nominations despite 8 months having passed.

The petition notes that, "Article 171(5) establishes that the object and purpose of such members to be nominated by the Governor to the LC was that the Council would have the benefit of nominees having special knowledge or practical experience in the fields of literature, science, art, and social service."

The court heard arguments by Senior Advocate Aspi Chinoy, assisted by Advocate Gaurav Srivastav for the petitioner Ratan Soli Luth, and Senior Advocate Rafique Dada for the State of Maharashtra.

Dada submitted that the Governor could accept or reject such a recommendation as per Constitutional provisions, but there cannot be a 'third illusionary and non-existent option.'

He submitted that Article 171 mandates the full Constitution of the Legislative Council, however, 12 posts for the LCs are vacant since June 2020,since 13 months.

Additional Solicitor General Anil Singh for the Union had said that the Governor had discretionary powers to accept or reject the nomination of ministers. Moreover, the constitution did not prescribe a time limit for the nomination. Singh also objected to the maintainability of the petition.

"If the council doesn't recommend any names, the Governor is not required to decide. But once the names are recommended, does the Governor not have a duty to speak?...There may be no escape that something has to be said," the court had observed.