In a major political collision, Maharashtra governor Bhagat Singh Koshyari and chief minister Uddhav Thackeray have not been able to call it truce over the nominations to the legislative council by Raj Bhavan.
Cabinet members Anil Parab of Shiv Sena, Amit Deshmukh of Congress and Nawab Malik of NCP had called on Koshyari to submit a list of 12 persons for appointment to the legislative council as nominees of the governor.
They urged him to nominate the 12 people within 15 days as there had already been a delay. The 15 days got over on Saturday. The Constitution provides no scope to set a deadline for the governor; it is purely his discretion.
Article 171 of the Constitution provides for the appointment of persons who have special knowledge or practical experience in the field of literature, science, art, cooperative movement and social service.
The Governor can argue that he is not obligated under the Constitution to act swiftly on the advice of the Council of Ministers. Political uncertainty is the last thing that Maharashtra, which has the highest coronavirus caseload and death toll by far in the country, needs at this moment.
In Biman Chandra Bose vs Dr H C Mukherjee (1952), the Calcutta High Court rejected the plea that none of the nine nominated members to the legislature fulfilled the required criteria, and held that the Governor cannot use his discretion in nominating members to the Council. He has to go by the aid and advice of the Council of Ministers.
It can be argued that Koshyari is bound by the advice of the Council of Ministers only in executive matters as defined in Article 162 (those “with respect to which the Legislature of the State has power to make laws”) — and since the nomination of members is not an executive power, he can act in his discretion.
The Constitution specifically mentions the situations in which the Governor can act in his discretion, e.g., Article 239 (Administration of Union Territories), Article 371 (Special provision with respect to the States of Maharashtra and Gujarat), Article 371A (Nagaland), Article 371H (Arunachal Pradesh), and in the Sixth Schedule (Provisions as to the Administration of Tribal Areas in Assam, Meghalaya, Tripura and Mizoram), etc.
The state cabinet on October 29 considered at length all the names received by the chief minister and submitted the list of 12: Eknath Khadse, Raju Shetti, Yashpal Bhinge and Anand Shinde of NCP; Rajani Patil, Sachin Sawant, Muzafar Hussain and Anirudha Wankar of Congress; Nitin Wangude Patil, Vijay Karanjkar, Chandrakant Raghuwanshi and Urmila Matondkar of Shiv Sena.
The minutes of the cabinet meeting held on October 29 say that their appointment will help other members of the legislative council gain knowledge of different fields. The cabinet note said: "The appointments have already been delayed, now the winter session is a few days away.