Maharashtra to see another tussle between MVA government and governor BS Koshyari?

Of the 78 members of the Upper house of state legislature, 12 are nominated by the governor on the recommendation of the state government

Another tussle is likely between the three- party ruling coalition Maharashtra Vikas Aghadi (MVA) and state governor BS Koshyari, this time over nominating 12 members to the state legislative Council.

The governor also has the option of approving the names in batches like was done by then governor of Uttar Pradesh Ram Naik in 2015 (HT File)

Of the 78 members of the Upper house of state legislature, 12 are nominated by the governor on the recommendation of the state government. More than a week after the MVA government recommended the 12 names, Koshyari is yet to take a decision. Although the issue is likely to lead to political friction between the state and Koshyari, constitutional experts feel it is binding on the governor to accept the recommendations within reasonable time and has no right to replace them with his choice of names. There was no reaction from Raj Bhavan (governor’s office-cum-residence) on the issue.

Each party in the MVA, comprising Shiv Sena, Nationalist Congress Party (NCP) and Congress, has recommended four names. According to the provision in Article 171(5) of the Constitution, people nominated from the quota must possess ‘special knowledge and practical experience’ in literature, science, art, cooperative movement and social service. The Sena has recommended the names of actor Urmila Matondkar, Nitin Bangude Patil, Chandrakant Raghuvanshi and Vijay Karanjkar; NCP has recommended Eknath Khadse, farmers’ leader Raju Shetti, folk singer Anand Shinde, and Yashpal Bhinge. The Congress has recommended the names of Rajni Patil, Muzaffar Hussain, Sachin Sawant and Aniruddha Wankar.

“All these names have been recommended with due deliberation in all three ruling parties after ensuring they fit in the given categories. All five categories have been given representation, as each one of them fits into one of the categories. We also studied the precedents and cases from at least five other states. The governor has to approve the names recommended by the government,” said a senior Congress leader.

A Sena minister said the three ruling parties would wait for some more time before expressing their views on the issue. “It’s been a week since we sent the names to the governor. We will wait for some more time. In case of CM Uddhav Thackeray, the governor had refused to accept the state cabinet’s recommendation to nominate him to the Upper house and we had to approach Prime Minister Narendra Modi. In this case, we will raise the issue of propriety and precedents if it comes to that,” he said.

In the current composition of the legislative Council, MVA has majority. It has 31 legislators, while BJP has 22. There are three legislators from smaller parties or outfits and four independents who are divided between ruling and opposition, when it comes to support on the floor of the house. In all, there are 18 vacant berths due to various reasons.

Ulhas Bapat, constitutional expert, said the names are expected to be approved by the governor within “reasonable timeframe”. “Applying the doctrine of silence, the reasonable time according to me could be two weeks. The governor has every right to seek explanation or advice on the names recommended as per the provisions in Article 167, but he cannot strike down the names suggested by a government which enjoys a clear majority in the Assembly. In one of the rulings, the SC has clarified that politics is part of the social service, and thus even political names fit into the category of social service,” he said.

According to officials from the law and judiciary department, the governor may point at the delay in recommending names by the government if he was asked to approve them immediately. The official said the names were recommended almost five months after the seats fell vacant in June and the governor cannot be expected to take a call immediately.

Bapat said the ruling parties will have the legal recourse to move the Supreme Court. “Secondly, they can also write to the President of India.”

Shrihari Aney, former advocate general of Maharashtra, said the Upper house exists in perpetuity and the governor is bound by the Constitution to fill certain categories of vacancies. “Leaving these seats vacant indefinitely would amount to failure on his part to perform his Constitutional duty. I don’t know of any precedent where a governor picked his own names, and in the current scenario too, Maharashtra governor is likely to go with the age-old set practice. However, he has the discretion under Article 171(1) read with 171(5) of the Constitution to select his own names. This exercise of discretion can be subject to limited judicial review, and may be challenged if the person he appoints fall outside the prescribed categories, or if his exercise of power is tainted by factual malice,” he said.

The governor also has the option of approving the names in batches like was done by then governor of Uttar Pradesh Ram Naik in 2015. “The governor cannot replace the names as the recommendation by the cabinet is binding on him, but he can seek clarification from the government on the proposal. I released the first list of four out of nine recommendations after three months and refused to clear the remaining as there were criminal and income-tax related cases against them. Then chief minister Akhilesh Yadav had to replace the names, which were later approved,” said Naik.