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Bombay HC asks Centre to clarify if governor can exercise discretion in duties

The Bombay high court (HC) on Friday sought presence of the Solicitor General of India to assist it in a case which seeks a declaration of the court that the inaction by Maharashtra Governor Bhagat Singh Koshyari in not nominating 12 members of Legislative council (MLC) whose names were suggested by the council of ministers was illegal
By KAY Dodhiya, Mumbai
PUBLISHED ON JUL 16, 2021 11:56 PM IST

The Bombay high court (HC) on Friday sought presence of the Solicitor General of India to assist it in a case which seeks a declaration of the court that the inaction by Maharashtra Governor Bhagat Singh Koshyari in not nominating 12 members of Legislative council (MLC) whose names were suggested by the council of ministers was illegal.

The court was prompted to seek assistance of the Centre after it was informed that as per the Constitution and the Government Business Rules, the governor was bound to take a decision on the list of candidates either way but he had failed to do so. The Centre is expected to clarify whether the governor is duty bound by the proposal or can exercise his discretion.

The division bench of chief justice Dipankar Datta and justice Girish Kulkarni, while hearing the public interest litigation (PIL) filed by Nashik resident Ratan Soli Luth, was informed by senior counsel Rafiq Dada, for the state, that the governor could not use his discretion and had to accept the recommendation by the council of ministers to nominate 12 persons as MLCs in normal situation.

Dada added that though the positions had fallen vacant in September 2020 and the recommendation of the council had been provided on November 6, 2020, the state was yet to receive a response from the governor.

In an earlier hearing, the state government had stated in an affidavit that the governor had not respected the recommendation and caused a delay, depriving citizens of benefits of such persons for healthy democracy and maintain rich traditions.

“The governor cannot just sit tight on the file and not do anything. There is a mandate of the law where he is required to act on the aid and advice of the council of ministers. Is a complete inaction open to a governor? He has no discretion,” Dada submitted, adding that the failure of the governor directly affected constitutional democracy. He said the court was the only organ which could ensure that democracy functions properly by conducting a judicial review of the inaction of the governor.

The bench observed that the petition could have some repercussions on other provisions of the Constitution, and therefore, it wanted the Central government to address the question as to whether any discretion was available to the governor not to nominate MLCs on the aid and advice of the council of ministers.

HC also questioned as to whether in 75 years of independence of the country, there was a ruling through which any court had passed directions and taken judicial review on alleged inaction of the governor of a state on the proposal of council of ministers for nomination of legislators.

The bench allowed the petitioner to make the Central government a party to the case and posted further hearing on July 19.

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