Case Note & Summary
The Bombay High Court, in this public interest litigation, examined the constitutional powers of the Governor to nominate members to the Maharashtra Legislative Council under Article 171(5) of the Constitution read with Section 10 of the Representation of People Act, 1950. The petition was filed by Ratan Soli Luth, a citizen, against the State of Maharashtra and the Union of India. The petitioner expressed concern that the Governor had failed to discharge a constitutional obligation by not acting on the advice of the Council of Ministers to nominate 12 members to the Legislative Council, all seats having fallen vacant by June 16, 2020. Article 171(3)(e) provides that the remainder of seats in the Legislative Council shall be nominated by the Governor in accordance with clause (5), which requires that such members have special knowledge or practical experience in literature, science, art, co-operative movement and social service. In Maharashtra, the Legislative Council has 78 members, of whom 66 are elected and 12 are to be nominated by the Governor. The term of all 12 nominated members ended, and by June 16, 2020 all seats were vacant. The Council of Ministers met on October 29, 2021 (as stated in the judgment text) and unanimously resolved to recommend 12 names to the Governor; the Chief Minister forwarded these names on November 6, 2021. The Governor did not act on this advice. The core legal issues were whether the Governor has discretion in making nominations under Article 171(3)(e) and (5), whether the Governor is bound by the aid and advice of the Council of Ministers under Article 163(1), whether the Governor's inaction was ultra vires, and whether judicial review is barred by the immunity under Article 361(1). The petitioner, through senior counsel Mr. Aspi Chinoy, argued that the Governor is the formal executive head and must act on the aid and advice of the Council of Ministers unless a specific provision confers discretion, and no such discretion exists for these nominations. Reliance was placed on Rameshwar Prasad (VI) to show that the Governor's immunity does not prevent judicial scrutiny of mala fide or ultra vires actions, and on Nabam Rebia, Biman Chandra Bose, and V. Venkateswar Rao. The Sarkaria Commission report was cited to state that the Governor has no discretion in such nominations. The State's contentions were not fully set out in the extracted portion; the State's senior counsel began referring to a reply affidavit of the Secretary of the Parliamentary Affairs Department. The extract does not include the court's detailed analysis or final order, but the court heard arguments on July 12, 16 and 19, 2021 and pronounced judgment on August 13, 2021. The final decision is not provided in the extracted text.
Headnote
A) Constitutional Law - Governor's Nomination Power - Article 171(3)(e) and (5) of the Constitution of India - The Governor is to nominate members to the Legislative Council who have special knowledge or practical experience in literature, science, art, co-operative movement and social service; Section 10 and Third Schedule of the Representation of People Act, 1950 allocate 12 nominated seats out of 78 in Maharashtra. The petition challenged the Governor's failure to make such nominations despite vacancy and advice of Council of Ministers. (Paras 1-5) B) Constitutional Law - Governor's Duty to Act on Aid and Advice - Article 163(1) of the Constitution of India - Petitioner contended that the Governor, as formal executive head, must act on the aid and advice of the Council of Ministers unless a provision confers discretion; no discretion exists for nominations under Article 171(5), making inaction ultra vires. (Paras 7, 11) C) Constitutional Law - Judicial Review and Governor's Immunity - Article 361(1) of the Constitution of India - Rameshwar Prasad (VI) was cited for the proposition that personal immunity from answerability does not bar challenge to actions of high authorities on grounds of mala fides or ultra vires, and such actions must be defended by the State or Union. (Para 8) D) Constitutional Law - Sarkaria Commission Report - Articles 171(3)(e), (5) and 333 of the Constitution of India - Sarkaria Commission report paragraph 4.11.31 stated that the Governor has no discretion in making nominations to the Legislative Council under Articles 171(3)(e) and (5) and to the Legislative Assembly under Article 333. (Para 10) E) Representation of People Act, 1950 - Allocation of Seats in Legislative Council - Section 10 read with Third Schedule - Maharashtra Legislative Council comprises 78 members; 22, 7, 7 and 30 members elected under respective sub-clauses totalling 66, leaving 12 to be nominated by Governor. All 12 seats became vacant by June 16, 2020, and Council of Ministers recommended 12 names, but Governor had not acted. (Paras 4-5)
Issue of Consideration
Whether the Governor of Maharashtra has discretion to decline or delay nominations to the Legislative Council under Article 171(3)(e) and (5) of the Constitution read with Section 10 and the Third Schedule of the Representation of People Act, 1950, and whether the Governor is constitutionally bound to act on the aid and advice of the Council of Ministers.
Law Points
- Governor must act on aid and advice of Council of Ministers unless discretion expressly conferred
- nomination under Article 171(3)(e) and (5) is not discretionary
- Governor's inaction is ultra vires
- Article 361 immunity does not bar judicial scrutiny of mala fide or ultra vires actions
- Sarkaria Commission says no discretion
