Bombay HC: Governor Has to Accept or Return Council of Ministers' Advice Within Reasonable Time

The high court found the Maharashtra governor Bhagat Singh Koshyari’s inaction for over eight months on the state council of minister’s advice on filling nominated seats in the legislative council unreasonable.

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New Delhi: The Maharashtra legislative council has 78 members, of whom 12 are to be nominated by the governor, in accordance with clause (5) of Article 171 of the constitution. On November 6 last year, the Maharashtra council of ministers recommended to the governor 12 individuals who have special knowledge or practical experience in respect of literature, science, art, cooperative movement and social service, as required by the constitution.

In Ratan Soli Luth v State of Maharashtra, the Bombay high court bench of Chief Justice Dipankar Dutta and Justice G.S. Kulkarni had to decide whether the governor has the discretion not to act on the names forwarded by the council of ministers headed by the chief minister. On Saturday, the bench decided that the governor ought to act within a reasonable time, and the delay of eight months in either accepting or returning the recommendations for reconsideration is unreasonable.

The Centre had opposed the PIL in this case on the ground of maintainability, stating that the petitioner had no locus standi in the case. The state government supported the petitioner’s plea that in nominating members of the legislative council, the governor is not empowered to act in his discretion.

Centre’s stand

The Centre argued before the high court that the power to nominate someone on the legislative council is not an executive function of the state government, and therefore, the council of ministers has no control over the same. The bench, however, rejected this contention, saying the recommendations to nominate were made in exercise of executive power.

The high court held that the it is not in the interest of the state that the governor’s action or inaction is made liable to a challenge by the same government of which he is the formal or constitutional head. The high court also rejected the Centre’s contention that it is the recommendees who have the locus standi to move the court against the governor’s inaction. The recommendees are neither officially supposed to know of such recommendation, till such time the governor nominates them, nor do they acquire any right to enforce a recommendation in their favour made by the council of ministers.

The Centre also made a strange argument before the high court that a public interest litigation (PIL) can only be maintained if it is intended to protect the interest of the weak, needy or marginalised people who, by reason of their social and economic status, are unable to access justice, with the result that the doors of justice are practically not open for them.

The high court, however, rejected this contention by holding that it can give proper direction to public power or to correct the exercise of such power, when it appears to the court that there is an error in exercise thereof which is affecting public interest. If by the act in question, a specific legal injury to an individual or a specific class or group of individuals is caused, in such cases, a member of the public having sufficient interest can certainly maintain an action, the high court held. The courts, in course of hearing a public interest litigation, ought to remind itself that it is the ‘sentinel on the qui vive’, since it is the court’s obligation to act as the custodian of constitutional morals and ethics, the bench further observed.

Governor’s discretion

The high court held that the office of a governor cannot be undermined to such an extent that it would be a mere post-office through which all acts of the council of ministers – good, bad or indifferent – could be routed for validation as an act of the government having constitutional sanctity, denuding the governor of any say in the matter. It is neither imperative nor possible for the governor personally to either approve or concur, as the case may be, with all executive actions that the government of a state proposes to take, the bench added. Yet, a distinction has to be drawn for orders or instruments which are issued after prior approval/concurrence of the governor, the bench noted.

“The constitution is obviously supreme and be you (any constitutional authority/functionary) ever so high, the constitution is above you applies with equal force to a governor as it does to a chief minister,” the bench observed.

The bench posed the question whether the governor is under any compulsion to blindly nominate recommendees as members of the Legislative council, if they are ineligible, or be not referable to any of the specified fields such as literature, science, art or cooperative movement and social service. If the council of ministers recommended names based on irrational choices, it would be open to the governor not to act as a rubber-stamp authority on grounds of propriety, the high court held. The governor is entitled under the constitution, to withhold nomination of any particular name for valid reason(s) and to send back such name(s) for further action by the council of ministers upon consideration of all relevant materials, the bench added.

Maharashtra Governor B.S. Koshyari and CM Uddhav Thackeray. Photos: PTI

Clear indictment

In a clear indictment of governor Bhagat Singh Koshyari’s inaction, the bench observed that one finds no time limit in the constitution for high authorities/functionaries to act, or consequences in default thereof being provided. This, the bench reasoned, was obviously because it might have been unimaginable for its founding fathers that an action/decision, which has to be taken promptly would be withheld, and thereby an important issue left to pend for months together. The founding fathers could not have thought of the radical change that human mindset would undergo of leaving aside the core human values and giving precedence to narrow materialistic self-interest over concerns for public good in the immediate future, the bench added.

The bench observed:

“It would not behove the dignity, prestige and majesty of the office of a constituitonal authority/functionary to take shelter of absence of a time limit to act in terms of a provision of the constitution, so as to defend an inaction when it is challenged in a constitutional court. All such constitutional authorities/functionaries, whichever office they are adorning, ought to stand tall and, while rising above all differences of opinion, arrive at a workable solution as quickly as possible. It is with the prompt and effective resolution of differences of opinion to take the nation forward that the respective incumbents would glorify the offices they hold, and not otherwise.”

If there are minor differences between the governor and the chief minister, the same ought to be resolved in such manner as deemed fit and appropriate including, inter alia, a discussion between them in the guiding spirit of the constitution. If there are major differences, the same have to be made known for ironing out such differences, the bench held.

“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….the duty of the Governor to speak and let the CM know his reservations about the recommendees, if at all, within a reasonable time has to be read …or else the legislative intent would stand defeated”, the bench reasoned.

Holding that eight months is sufficiently long period, the bench found it beyond reasonable time, but also inferred that the governor must have taken such time to complete necessary enquiries about the recommendees and should have now reached a conclusion one way or the other. The obligation of the governor, the bench considered it eminently desirable, should be duly discharged without undue delay.

Governor Koshyari, however, was not made a respondent in the case, in view of his immunity under Article 163 (2) of the constitution.