Governor should accept or return recommendations for nomination of members to State Legislative Council within reasonable time: Bombay High Court

The Bombay High Court on Friday held that it is the constitutional duty of Governor to accept or return within a reasonable time the recommendations sent to him by Council of Ministers for nominations of the 12 members to the State Legislative Council or else statutory intent regarding the same will be defeated (Ratan Soli Luth v. State of Maharashtra & Anr.)..The Court held that the 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 was maintainable..The Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni declared that "the obligation which the constitution vests upon the governor to either accept or return the recommendation as made by the Council of Ministers forming part of advice has to be discharged within a reasonable time". .Holding that the seats of the legislative council cannot be vacant indefinitely, the Court opined it was "the duty of the Governor to speak and to let the Chief Minister know the Governor’s reservations about the recommendees if at all any within a reasonable time, or else the statutory intent would stand defeated"."What would be a reasonable time however must depend on the facts of each case and 8 months on facts seems to be beyond reasonable time" the Court dictated in its order. .The Court expressed its hope and trust that "thing will be set right at an early date" "Having regard to gravity of the issue involved and the necessity to fill out the vacant seats expeditiously as well as to subserve the aims set by the Constitution, the Court would consider it eminently desirable if the application in the present case is July discharged without any undue delay", the Court said. .The Court also observed that "it is mature, sensible and responsible governance both at the Centre as well as the States that the people look upto. Should there be any misunderstanding or miscommunication between two constitutional authorities or functionaries, right steps in the correct direction ought to follow to evade the same." The Court emphasised that if there be minor opinions or differences, the same ought to be resolved, in such manner as deemed fit and appropriate, which includes a discussion between the Governor and Chief Minister Uddhav Thackeray. "Indeed if there are major differences, the same have to be made known for ironing out such differences." the Court remarked. .The petition sought a declaration from the Court that "the Governor is constitutionally bound to act 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 petitioner, Ratan Soli Luth, submitted that through the Governor cannot be made a party to the case, his actions or inaction are 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 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..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..After hearing the parties, the Court had reserved the plea for orders on July 19, 2021. ."Is Governor not bound by his Constitutional duty?" asks Bombay High Court, reserves order in PIL on nomination of members to Legislative Council