FPJ legal: Governor has constitutional duty to nominate 12 people to council, says Bombay High Court
Photo by ANI

While reserving its order, the Bombay High Court observed, on Monday, that the Maharashtra Governor has a constitutional duty to either accept or reject the recommendation sent by the council of ministers to nominate 12 people to Legislative Council (MLC) and that there was no escape from this duty.

A division bench of Chief Justice Dipankar Datta and Justice Girish Kulkarni was hearing a public interest litigation filed by Nashik resident Ratan Luth that the governor should expeditiously nominate MLCs as recommended by the council of ministers. The posts of 12 MLCs have been lying vacant since June, 2020.

“Once a proposal is sent, then it is the duty of the governor to accept it or send it back. Can the governor keep the seats (of MLCs) vacant? Would it not be the governor’s duty (to nominate)?” asked the chief justice.

Additional Solicitor General (ASG) Anil Singh, while representing the union government, argued that the governor has ‘discretionary powers’ to nominate MLCs based on the recommendation. He even argued that the Constitution of India does not specify any time frame in which the governor has to accept the recommendation and nominate MLCs.

To this, the chief justice remarked, “The proposal has been sent and is pending since November, 2020. The governor may or may not accept it. However, does the Governor not have a duty to speak or act? Is there any time provision in the constitution that says that the governor may not act at all?”

Giving a hypothetical example, the chief justice questioned what if a court hears a case, reserves it for order and then does not pass any order for over three months. “There is a provision in such a scenario that the parties in this case can go to the chief justice of the HC and seek that the case be assigned to another judge who would hear it and pass necessary orders,” said the chief justice.

Senior Counsel Rafiq Dada, who argued for the state government, sought that the governor take a decision on the same within a period of 15 days. The HC has reserved the order in the petition after hearing the arguments on behalf of Luth and the state and union governments.

An intervention application was filed by sitting MLC Vinayak Mete that, if the PIL contention (governor is bound by the advice of council of ministers) is accepted, then it will run counter to the Constitution of India. According to Mete, the power to nominate MLCs under Article 171(3)( e) ( e) read with Article 171 (5) of the Constitution of India vests exclusively with the governor.

Senior Counsel Harish Salve was to argue for Mete. However, he couldn’t argue later due to personal difficulty. While declining Mete’s request to submit a written note, the judges said that it would be of no use, since they have heard all the concerned parties and reserved the order.

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