Cabinet advice to CM Eknath Shinde to withdraw 12 MLC recommendations not open to judicial scrutiny: State to Bombay High Court

Court is not empowered to scrutinize the decision of the Maharashtra cabinet to withdraw the 12 names recommended by the former Maha Vikas Aghadi (MVA) government to be Members of Legislative Council (MLC), the Maharashtra government told Bombay High Court on Tuesday [Sunil Modi v. State of Maharashtra & Ors.].The submission was made in an affidavit filed in reply to a public interest litigation (PIL) petition initiated by Sunil Modi, a member of Shiv Sena (Uddhav Thackeray) faction.Sunil Modi has challenged an August 2022 decision of the government led by Shinde to withdraw the 12 MLC nominations. The then governor Bhagat Singh Koshyari had subsequently approved the Cabinet's decision and returned the names earlier recommended by the MVA government..An affidavit filed before the High Court by the deputy secretary of the incumbent State government pointed out that there is no legal basis to challenge this withdrawal. The officer added that it is open to the Council of Ministers and the Chief Minister to reconsider advice and, if need be, withdraw the recommendations till such time that the Governor does not nominate or accept the nominations.“The question as to what advice was given by the Council of Ministers and on what basis is not open to judicial scrutiny. It cannot be disputed that it is always open to the council of ministers and Chief Minister to withdraw the recommendations made before the same are accepted by the Governor and the making of the nominations,” the affidavit stated. .The Uddhav Thackeray-led MVA government had recommended a list of 12 names to the Governor as MLCs in November 2020. A year later, after a political upheaval, the State government changed and Shinde took over as the new Chief Minister of the State.The new cabinet requested the Governor to return the pending names. This proposal was accepted and the Governor's office returned the list back to the Chief Minister’s Office (CMO)..Modi’s PIL has not only challenged the withdrawal but also urged the Court to direct the Governor to either nominate the 12 persons earlier recommended or to return the file with reasons. The State has asserted that this is not a maintainable relief in the eyes of the law and the constitutional scheme.The State added that even if there was a delay on the Governor's part to take a decision on the 12 names earlier recommended, it does not disentitle the Council of Ministers from exercising its right to withdraw these recommendations. In view of these submissions, the State government has sought dismissal of the PIL.