Bombay High Court Reserves Order on PIL Challenging Governor's Alleged Inaction to Decide on Nomination Of Members to MLC

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

Additional Solicitor General Anil Singh for the Union repeatedly said that the Governor had discretionary powers to accept or reject the nomination of ministers. 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."

Chief Justice Dipankar Datta led bench gave the HC's example that while the Constitution of India hasn't prescribed a time limit for deciding a petition under Article 226, the decisions can't be kept in abeyance indefinitely.

The Supreme Court has stepped in, asking the High Court to pronounce orders within three months and granted parties liberty to approach the Registrar for a change in bench if it is not done, the CJ added.

"The law is evolving Mr Singh, can this be an argument that there is no time limit mentioned?"

Singh said that since the petitioners are legally not permitted to make the Governor a party to the petition, they are attempting to get the job done indirectly by seeking a declaration that the Governor acted in breach of his constitutional duty.

He further submitted that the job of a Governor would be just to put a rubber stamp on the decision of the council on ministers if it was accepted that he did not have discretionary powers.

After hearing Singh and petitioner's counsel senior advocate Aspi Chinoy, the bench reserved the PIL filed by Nagpur resident Ratan Soli for orders.

On July 17, the court asked the petitioners to implead the Union of India as a party to the PIL and noted that an important issue was to be decided through the petition, as to whether the Governor has any discretion not to nominate members to the LC as recommended by the CoM.

"Whether in terms of the provisions of clause (3)(e) and clause 5 of Article 171 of the Constitution read with Article 163 thereof or the Rules of Business framed under clause (3) of Article 166 of the Constitution, any discretion is available to the Governor not to nominate members of the Maharashtra Legislative Council on the aid and advice of the Council of Ministers?"

The Petition

The plea alleges 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."