Bombay High Court
Ratan Soli Luth Of Nashik vs State Of Maharashtra on 13 August, 2021
Bench: G. S. Kulkarni
Judgment-PIL(L)-10300.2021
pvr
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION (L) NO. 10300 OF 2021
Ratan Soli Luth } Petitioner
versus
State of Maharashtra & Anr. } Respondents
Mr. Aspi Chinoy, Senior Advocate along with Mr. Gaurav
Srivastava, Mr. Mukul Taly & Mr. Aziz Mohammed & Vithoba
Masurkar i/by S. Mahomedbhai & Co. for the petitioner.
Mr. Rafique Dada, Senior Advocate - Special Counsel with Ms.
Geeta Shastri, Additional Government Pleader with Mr. Akshay
Shinde "B" Panel Counsel for the respondent no.1 - State.
Mr. Anil C. Singh, Additional Solicitor General with Mr. Aditya
Thakkar & Mr. D.P. Singh for the respondent no.2 - Union of
India.
C0RAM : DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
HEARD ON : July 12, 16 and 19, 2021
JUDGMENT ON : August 13, 2021
Per Court (Dipankar Datta, CJ.)
INTRODUCTION
1. This Public Interest Litigation raises an interesting
question in regard to the powers and role of the Governor to
make nomination on the Legislative Council as conferred by
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clauses (3)(e) and (5) of Article 171 of the Constitution read
with section 10 of the Representation of People Act, 1950
(hereafter "the 1950 Act") and the Third Schedule thereto.
2. Maharashtra is one of the few Indian States the
Legislature whereof has two houses, i.e., the Legislative
Assembly and the Legislative Council. The Legislative Assembly
is comprised of 288 members, who are chosen by direct
election from territorial constituencies in the State. Article
171(1) of the Constitution ordains that the total number of
members in the Legislative Council shall not exceed one-third
of the total number of members in the Legislative Assembly of
that State whereas, the proviso thereto, ordains that the
number of members in any case shall not be less than forty.
3. Clause (2) of Article 171 of the Constitution ordains that
until Parliament by law otherwise provides, the composition of
the Legislative Council of a State shall be as provided in clause
(3). For facility of reference, such provision together with clause
(5) of Article 171, which has to be read together, are
reproduced hereunder:
Judgment-PIL(L)-10300.2021
"Article 171. Composition of the Legislative Councils
(1) ***
(2) ***
(3) Of the total number of members of the Legislative Council
of a State--
(a) as nearly as may be, one-third shall be elected by
electorates consisting of members of municipalities, district
boards and such other local authorities in the State as
Parliament may by law specify;
(b) as nearly as may be, one-twelfth shall be elected by
electorates consisting of persons residing in the State who
have been for at least three years graduates of any university
in the territory of India or have been for at least three years in
possession of qualifications prescribed by or under any law
made by Parliament as equivalent to that of a graduate of any
such university;
(c) as nearly as may be, one-twelfth shall be elected by
electorates consisting of persons who have been for at least
three years engaged in teaching in such educational
institutions within the State, not lower in standard than that of
a secondary school, as may be prescribed by or under any law
made by Parliament;
(d) as nearly as may be, one-third shall be elected by the
members of the Legislative Assembly of the State from
amongst persons who are not members of the Assembly;
(e) the remainder shall be nominated by the Governor in
accordance with the provisions of clause (5).
(4) ***
(5) The members to be nominated by the Governor under sub-
clause (e) of clause (3) shall consist of persons having special
knowledge or practical experience in respect of such matters
as the following, namely:--
Literature, science, art, co-operative movement and social
service."
4. Section 10 of the 1950 Act read with the Third Schedule
thereof is the law enacted by the Parliament, which now
provides for the allocation of seats in the Legislative Councils.
Judgment-PIL(L)-10300.2021
In terms of such provision, the number of members of the
Legislative Council of Maharashtra shall be 78, of whom 22, 7,
7 and 30 members shall be elected in terms of sub-clauses (a),
(b), (c) and (d) of clause (3) of Article 171, respectively,
totaling 66. The remainder, i.e., 12 members are to be
nominated by the Governor in accordance with clause (5) of
Article 171 of the Constitution.
5. The term of all the 12 members nominated earlier ended
by efflux of time. By June 16, 2020 all the seats were vacant.
Resultantly, the Council of Ministers met on October 29, 2021
and unanimously resolved to render appropriate aid and advice
to the Governor. In such meeting, the Council of Ministers
decided to recommend names of 12 individuals, who did not
incur disqualification under Article 191 of the Constitution, to
the Governor for nomination in terms of clause (5) of Article
171 thereof. The Chief Minister of Maharashtra followed up this
decision by forwarding, on November 6, 2021, the names of
the said 12 individuals to the Governor of Maharashtra for such
nomination. Despite receipt of the names recommended by the
Council of Ministers, which is in the nature of advice, and
several months having passed since then, it is claimed that the
Judgment-PIL(L)-10300.2021
Governor has not acted on such advice with the result that
nomination of 12 members for composition of the Legislative
Council in terms of the aforesaid provisions could not be
completed.
THE CONCERN AND THE PRAYERS
6. In this Public Interest Litigation, the petitioner has
expressed concern that the Governor of Maharashtra has failed
to discharge a Constitutional obligation and, therefore, relief
ought to be granted in terms of prayers (a), (b) and (c) of the
writ petition, set out hereinbelow:
"PRAYERS:
(A) This Hon'ble Court be pleased to issue a writ of Certiorari
or any other appropriate writ order or direction under
Article 226 of the Constitution of India calling for the
record and papers pertaining to the Hon'ble Governors
failure to make nominations under Article 171(5) of the
Constitution of India pursuant to the advice and decision
of the Respondent's Council of Ministers in November,
2020 and after considering the legality and propriety
thereof be pleased to quash and set aside the same;
(B) This Hon'ble Court be pleased to declare under Article
226 of the Constitution of India that the Hon'ble
Governor acted in breach of Article 163(1) read with
Article 171(5) of the Constitution of India in failing to
make nominations under Article 171(5) of the
Constitution of India pursuant to the advice/decision of
the Respondent's Council of Ministers submitted to him
in November, 2020;
Judgment-PIL(L)-10300.2021
(C) That this Hon'ble Court be pleased to declare under
Article 226 of the Constitution of India that the Hon'ble
Governor is constitutionally bound to act on and in
accordance the advice / decision of the Respondent's
Council of Ministers in November, 2020 and is
constitutionally required to make nominations under
Article 171(5) of the Constitution of India to the
Legislative Council in accordance therewith."
PETITIONER'S CONTENTIONS
7. Appearing in support of the writ petition, Mr. Aspi Chinoy,
learned senior advocate, gave a brief overview of the procedure
for functioning of the executive Government. He contended that
though the Governor is the formal executive head of the
Government, the Constitutional scheme requires the Governor
of a State to act on the aid and advice of the Council of Ministers
unless, of course, any particular provision confers on the
Governor the power to act in his discretion. However, insofar as
nomination of members of the Legislative Council under section
10 and the Third Schedule of the 1950 Act read with clause (5)
of Article 171 is concerned, the Governor has no such discretion
to act against or contrary to the advice of the Council of
Ministers and, therefore, there is no reason for the Governor to
nominate the recommended individuals by acting on the advice
received from the Council of Ministers. According to him, the
Judgment-PIL(L)-10300.2021
inaction of the Governor to nominate members as per the
advice of the Council of Ministers and failure of the Governor to
act on the names forwarded by the Chief Minister are ultra
vires.
8. The Constitution Bench decision in Rameshwar Prasad
& ors. (VI) vs. Union of India & anr., reported in (2006) 2
SCC 1, was first cited by Mr. Chinoy. Paragraph 19 of the
decision was adverted to where the Court indicated brief
reasons, to be followed by detailed reasons later, on the
question whether the Governor could be impleaded in his
capacity as the Governor and whether a notice could be issued
to him. The submission of the learned Attorney General and the
Additional Solicitor General that in view of Article 361(1) the
Court may not issue notice to the Governor, was accepted; at
the same time, it was noted that the immunity granted to the
Governor does not affect the power of the Court to judicially
scrutinize the attack made to the proclamation issued under
Article 356(1) of the Constitution on the ground of mala fides
or it being ultra vires. Our attention was then invited to
paragraph 141 to highlight that even when an action under
Article 356 of the Constitution of India is taken by the President
Judgment-PIL(L)-10300.2021
of India on the report of a Governor, the drastic and extreme
action cannot be justified on mere ipse dixit, suspicion, whims
and fancies of the Governor, and that the Supreme Court cannot
remain a silent spectator watching the subversion of the
Constitution. Paragraph 170 was next placed to show that even
though Article 361 of the Constitution of India grants immunity
to the Governor from being answerable to Court in exercise and
performance of the powers and duties of his office, a mala fide
act is wholly outside the scope of the power, and immunity thus
granted would not mean that in the absence of the Governor,
the grounds of mala fide or being ultra vires would not be
examined by the Court. The statement of law in paragraph 173
of the decision was then placed for the proposition that personal
immunity from answerability, provided in Article 361 of the
Constitution, does not bar a challenge that could be laid to the
actions of high authorities mentioned therein, and under law,
such actions including those actions, where the challenge may
be based on the allegations of mala fides, are required to be
defended by the Union of India or the State, as the case may
be.
Judgment-PIL(L)-10300.2021
9. Mr. Chinoy further placed heavy reliance on paragraphs
140 to 148, 150 to 155 and 214 of the Constitution Bench
decision of the Supreme Court in Nabam Rebia and Bamang
Felix vs. Deputy Speaker, Arunachal Pradesh Legislative
Assembly & ors., reported in (2016) 8 SCC 1, to which this
Court proposes to advert a little later. The decisions of the
Calcutta High Court in Biman Chandra Bose vs. Dr. H.C.
Mookerjee & ors., reported in AIR 1952 Calcutta 799, and the
decision of the Andhra Pradesh High Court in V. Venkateswar
Rao (V.V. Rao) vs. The Government of Andhra Pradesh &
ors., reported in 2012 SCC OnLine AP 286, were also cited to
drive home the point that nomination of members of the
Legislative Council by the Governor would not be justifiable.
10. Mr. Chinoy also placed before us a portion of the report of
the Sarkaria Commission on Centre-State relations and relied
on paragraph 4.11.31 thereof reading as follows:
"Nomination to Legislative Council/Assembly
4.11.31 A question has been raised whether the
Governor has discretion in making nominations to the
Legislative Council under Arts. 171(3)(e) and (5) and to
the Legislative Assembly vide Art. 333. Art. 171 does not
provide for the exercise of discretion by the Governor.
Similarly, no discretion is available to the Governor to
make a nomination to the Legislative Assembly under Art.
Judgment-PIL(L)-10300.2021
333. The Governor should await the formation of a
Ministry, if at the time of making a nomination, a Ministry
has not been formed or has resigned or lost majority in
the Assembly."
11. To summarize Mr. Chinoy's submission, the Governor has
no choice in the matter of nomination of members to the
Legislative Council under the Constitution but to accept the
advice of the Council of Ministers and to act on it and, the
Governor in the present case, has maintained complete silence
which is not in consonance with the obligation imposed on him
by the Constitution and the laws.
12. In course of hearing, Mr. Chinoy submitted that the
petitioner would not press for relief in terms of prayer (a) but
based on the aforesaid submissions, the Court may consider
granting prayers (b) and (c).
CONTENTIONS OF THE FIRST RESPONDENT/STATE
13. Mr. Rafique Dada, learned senior advocate appeared on
behalf of the first respondent/State and extended due
assistance by his fair arguments. He invited our attention to
the reply affidavit of Mr. S.B. Waghole, the Secretary (in-
charge), Parliamentary Affairs Department, Mantralaya,
Mumbai, and placed its contents. According to Mr. Dada, it is
Judgment-PIL(L)-10300.2021
the Constitutional mandate that the nominated members [as
per clauses (3) and (5) of Article 171] form part of the
Legislative Council and the Governor is bound to accept the
advice of the Council of Ministers received in that behalf. As a
consequence of the Governor not nominating the said 12
individuals as members, Mr. Dada contended that the
Legislature and the citizens of Maharashtra are being deprived
of the special knowledge and expertise of the individuals who
have been so recommended by the Council of Ministers.
14. Next, Mr. Dada invited the attention of this Court to clause
(3) of Article 166 of the Constitution as well as to the
Maharashtra Government Rules of Business, 1975 (hereafter
"the RoB", for short) framed thereunder by the Governor
himself. Referring to several provisions of the RoB [rules 9, 10,
15 and the Second Schedule] as well as the instructions forming
part of the same, viz. Instructions 15(1)(x) and 15(2)(vi), Mr.
Dada urged that the Governor cannot deviate therefrom and
decline acceptance of the advice of the Council of Ministers to
nominate the recommended individuals as members of the
Legislative Council, and, by not respecting the advice, the fine
Judgment-PIL(L)-10300.2021
balance in the interplay of powers between the Government
and the Governor has been put at stake.
15. The decision in Nabam Rebia (supra) was also referred
to by Mr. Dada. Since Mr. Chinoy had extensively referred to
the leading judgment authored by Hon'ble J.S. Khehar, J. (as
the former Chief Justice of India then was), Mr. Dada refrained
from referring to the same. However, pointed attention of this
Court was drawn by Mr. Dada to the concurring opinion of
Hon'ble Madan B. Lokur, J. (as His Lordship then was) in
paragraphs 257 and 258 thereof. Placing reliance thereon, Mr.
Dada submitted that the Governor has neither been conferred
discretion 'by the Constitution' nor 'under the Constitution' to
not accept the advice of the Council of Ministers; also, in
nominating members of the Legislative Council, the Governor
is not empowered to act in his own judgment.
PROCEEDINGS BEFORE THIS COURT
16. It is placed on record that at the inception of the hearing
on July 16, 2021, Mr. Anil C. Singh, learned Additional Solicitor
General had intervened and prayed that the Union of India
(UoI) may be impleaded as a respondent and heard. It was
Judgment-PIL(L)-10300.2021
observed by this Court that an appropriate order on such prayer
would be passed after hearing the parties on record.
17. Mr. Chinoy and Mr. Dada having completed their
submissions on July 16, 2021, this Court considered it fit and
proper to hear the Central Government upon it being brought
on record as an additional respondent. Directions for
impleading the Union of India as the second respondent,
amendment of the cause title of the petition and service of
amended copy thereof on Mr. D.P. Singh, learned advocate on
record for the UoI were made.
18. The UoI was impleaded as the second respondent in
compliance with the aforesaid order. This Court had the benefit
of hearing Mr. Singh for the UoI on July 19, 2021.
19. It is also placed on record that initially, this Public Interest
Litigation tagged with two other writ petitions were placed on
board. In those petitions, the recommendations made by the
Council of Ministers by way of advice to the Governor have been
challenged. Since such writ petitions were being opposed by Mr.
Kumbhakoni, learned Advocate General for the State of
Judgment-PIL(L)-10300.2021
Maharashtra, he had made available a compilation of
judgments, which was taken on record.
CONTENTIONS OF THE SECOND RESPONDENT/UNION
20. Mr. Singh, at the outset, objected to the maintainability
of the writ petition in the 'Public Interest Litigation' jurisdiction
of this Court on three-fold grounds.
First, Mr. Singh referred to W.P. (C) No. 176 of 2021 [Dr.
Jagannath Shamrao Patil vs. Union of India & anr.], being
a writ petition under Article 32 of the Constitution instituted
before the Supreme Court in its 'Public Interest Litigation'
jurisdiction. The petitioner therein had claimed the following
relief:
"a. Issue writ of mandamus / directions to the
Respondents to act in consonance with the mandatory
provision of the Art. 171(5) of the Constitution of India
for the purpose of the nominations of 12 persons as
members of the Maharashtra Legislative Council and
frame the norms and / or the specific criteria for the
purpose of such nomination.
b. Issue writ of mandamus / directions to the
Respondents to defer the nominations till the specific
norms or the criteria as prayed above is framed and
approved by the office of the Hon'ble Governor or in the
alternative it be directed to make such nominations under
its sole discretion without any influence of the
recommendation of the minister of councils of the
Respondent no.2.
Judgment-PIL(L)-10300.2021
c. During the pendency and final hearing of this writ
petition the respondent no.2 may kindly be directed to not
to intervene in the process of nomination so as to avoid
the practice of nomination under political considerations.
d. grant any other appropriate relief which this Hon'ble
Court may deem fit in the facts and circumstances of the
case."
By an order dated July 2, 2021 of the Bench presided over by
the Hon'ble the Chief Justice of India, W.P. (C) No. 176 of 2021
was summarily rejected on the ground that the Court was not
inclined to entertain the same. According to Mr. Singh, in view
of rejection of the said writ petition which involved the same
issue as raised in this Public Interest Litigation, the same is not
maintainable. Secondly, according to Mr. Singh, a Public
Interest Litigation would lie if members of the public, who are
deprived of their rights for varying reasons, are unable to
approach the Court for enforcement of such rights. He
contended that not only is there any averment in the petition
that the affected people are unable to approach the Court, no
foundation has been laid in the petition as to why the Public
Interest Litigation should be entertained. If at all, he further
contended that it is either the State Government or the
recommendees who could lay a challenge to the Governor's
Judgment-PIL(L)-10300.2021
action or inaction, but the petitioner has no locus standi to so
challenge. While persuading this Court to decline interference,
Mr. Singh relied on the decision of the Supreme Court in Jaipur
Shahar Hindu Vikas Samiti vs. State of Rajasthan and
others, reported in (2014) 5 SCC 530, and a decision of the
coordinate bench of this Court in Mrinali Shashi Shekhar
Chakravorty vs. Election Commission of India, New Delhi
and another, reported in 2020 (4) Mh.L.J. 402.
Thirdly, Mr. Singh contended that the petitioner merely seeks a
declaration of law and nothing else and any decision in relation
thereto would be purely academic; and while submitting that
the Court should be reluctant to decide Constitutional points
which are of academic importance, reliance was placed on the
decisions in State of Bihar vs. Rai Bahadur Hurdut Roy
Moti Lal Jute Mills & anr., reported in AIR 1960 SC 378,
Vidyasagar Singh vs. Krishna Ballabha Sahay & ors.,
reported in AIR 1965 Pat 321, In re: ICICI Bank Ltd. & ors.,
reported in AIR 2006 All 239, and K.B. Nagur, M.D.
(Ayurvedic) vs. Union of India, reported in (2012) 4 SCC
483.
Judgment-PIL(L)-10300.2021
21. Moving on further, Mr. Singh contended that the
petitioner's contention of the Governor being bound by the
advice of the Council of Ministers, meaning thereby that the
Governor would have absolutely no discretion in the matter of
nomination and that the State would control the nomination of
members under clause (5) of Article 171, is clearly contrary to
the intent of the Constitution. According to Mr. Singh, clause
(5) of Article 171 of the Constitution empowers the Governor
to nominate members, and in the process, the Governor has a
discretionary power to nominate as well as a right to reject any
particular name and to send it for reconsideration. He further
argued that while the Governor exercises no control over influx
of elected members, the decision on the question as to who
would be nominated as a member to the Legislative Council is
solely within the Governor's discretion. This is because, the
power to nominate is not an executive function of the State
Government and, therefore, the Council of Ministers has no
control over the same.
22. To buttress his contention that in the matter of
nomination under clauses (3)(e) and (5) of Article 171 of the
Constitution, the Governor is not bound by the advice of the
Judgment-PIL(L)-10300.2021
Council of Ministers and that he is to act in his own discretion,
Mr. Singh placed reliance on a decision of the Division Bench of
the Allahabad High Court in Ranjana Agnihotri and others
vs. State of Uttar Pradesh Chief Secretary Government
and others, reported in 2015 Indlaw ALL 404. Mr. Singh also
fairly placed before this Court another Division Bench decision
of the same High Court in K.K. Tripathi vs. State of U.P.,
reported in 2010 SCC OnLine All 573, wherein it has been held
as under:
"We, therefore, do not intend to enter into this debate
about the nature of discretion, which is exercised by the
Governor in the matter of nomination of members to
Legislative Council, in the given facts and circumstances
of the present case, but do observe that if the Governor
is to exercise his personal discretion in nominating the
members, he can do so on his own satisfaction, but
assuming that such a discretion by the Governor has to
be exercised, on the aid and advice of the Council of
Ministers, he can still send back the proposal for
reconsideration of all or some of the names to the Council
of Ministers, with his own suggestions, and even in case,
the names are suggested individually by the Chief
Minister, the Governor will have his authority to send the
matter for consideration by the Council of Ministers."
23. Arguing in support of the proposition that the Governor,
even in the absence of express provision in the Constitution
conferring discretion in his favour, has the discretion to go
Judgment-PIL(L)-10300.2021
against the advice of the Council of Ministers or to even act
contrary to it, Mr. Singh relied on the Constitution Bench
decisions in B.R. Kapur vs. State of T.N. and another,
reported in (2001) 7 SCC 231, and M.P. Special Police
Establishment vs. State of M.P. and others, reported in
(2004) 8 SCC 788. Incidentally, heavy reliance was placed by
Mr. Singh on M.P. Special Police Establishment (supra) to
contend that the Governor is not, in all cases bound to accept
the advice of the Council of Ministers and may even proceed to
act in a manner effectively rendering the advice as irrelevant
and not binding.
24. Referring to paragraph 155 of the decision in Nabam
Rebia (supra), Mr. Singh also contended that the Governor
may, in exceptional circumstances, on the ground of propriety
refuse to be bound by the advice of the Council of Ministers.
25. The decision in State of Gujarat & anr. vs. Justice R.A.
Mehta (Retired) & ors., reported in (2013) 3 SCC 1, was
relied on for the proposition that in terms of clause (2) of Article
163 of the Constitution, the Governor himself is the final
authority to decide upon the issue as to whether he is required
Judgment-PIL(L)-10300.2021
by or under the Constitution to act in his discretion and the
Council of Ministers, therefore, would be rendered incompetent
in the event of there being a difference of opinion with respect
to such a question; and a decision taken in this regard by the
Governor would not be open to challenge in any Court.
26. This Court has also heard Mr. Singh submit, in regard to
the petitioner's allegation of the Governor having acted ultra
vires by not accepting the advice of the Council of Ministers,
that the petitioner has not identified any provision requiring the
Governor to act within a specified time period. In continuation
of such contention, Mr. Singh argued that neither the State
Government nor the petitioner has specified from when the
Governor could be alleged to have been in default. A bald
assertion that the Governor has failed to act without lawful
cause, according to Mr. Singh, thus cannot form the basis to
avoid the Constitutional bar under Article 361 of the
Constitution without any further factual foundation having been
laid.
Judgment-PIL(L)-10300.2021
27. Based on the aforesaid submissions, Mr. Singh submitted
that the Public Interest Litigation lacked merit and deserves to
be dismissed.
ARGUMENTS IN REJOINDER
28. Replying to the submissions of Mr. Singh, Mr. Chinoy
contended that the objection to the maintainability of this
petition is without substance. Attention of the Court was drawn
to the proviso to clause (1) of Article 74 of the Constitution for
the proposition that while the President has been expressly
conferred the power to require the Council of Ministers to
reconsider an advice, no such similar power having been
conferred by the Constitution on the Governor, he has no other
option but to accept the advice. According to Mr. Chinoy, the
RoB cannot also be read as conferring power on the Governor
to return the advice that was tendered back to the Council of
Ministers for reconsideration. Reiterating that the Governor had
failed in his Constitutional obligation, he concluded by
submitting that this Court may declare the action of the
Governor as ultra vires the Constitution.
Judgment-PIL(L)-10300.2021
THE QUESTIONS
29. The parties have been heard, with their consent, at the
stage of admission of the writ petition.
30. This Court shall first proceed to consider the question
whether the writ petition is maintainable. An affirmative answer
to such question would necessarily propel the Court forward to
find answers to the following two questions:
1. Whether, in terms of Section 10 of the 1950 Act and
the Third Schedule read with clauses (3)(e) and (5)
of Article 171 of the Constitution, or the RoB framed
under clause (3) of Article 166 of the Constitution,
any discretion is available to the Governor not to
nominate members of the Maharashtra Legislative
Council upon receipt of the advice of the Council of
Ministers? If so, whether the Governor is required to
take any further action?
2. In the event the answer to the above question is in
the affirmative, does the Governor not have a 'duty
to speak'?
DECISION WITH REASONS
31. The first requirement for the maintainability of a public
interest litigation is the uberrima fides of the petitioner. Mr.
Singh has not contended that the writ petition does not satisfy
the test of utmost good faith which is imperative to maintain a
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litigation in public interest. His objections, noted above, are
different and this Court is unhesitatingly of the opinion that
such objections are not well-founded for the reasons proposed
to be assigned while dealing with each and every point of
objection.
32. Dismissal of W.P. (C) No. 176 of 2021 by the order dated
July 2, 2021 of the Supreme Court does not, in the considered
view of this Court, pose any difficulty for the petitioner to
maintain this writ petition. A bare reading of the said writ
petition would reveal that the same was primarily instituted by
the petitioner to urge the Supreme Court to frame norms
and/or to specify criteria for the purpose of nomination of
members to the Maharashtra Legislative Council under clause
(3) read with clause (5) of Article 171 of the Constitution.
Paragraph 1 of the writ petition may be referred to where it was
averred that due "to lack of specific norms or criteria ... several
eligible and deserving Personalities are deprived from
consideration of names for the purpose of their nominations ...
and thus fundamental right contemplated under Article 14 is
being violated". The thrust of the petitioner in W.P. (C) No. 176
of 2021 was framing of norms/criteria by or at the persuasion
Judgment-PIL(L)-10300.2021
of the Supreme Court. Although incidentally the petitioner had
prayed for a direction on the Governor to make such
nominations under its sole discretion and without being
influenced by the recommendation of the Council of Ministers,
such prayers were clearly not maintainable and hence did not
deserve consideration. The subject matter of this petition being
entirely different, there is no bar to entertain it.
33. The next objection basically is that, it is either the State
Government or the nominees who ought to have approached
the Court and not the petitioner. In the further considered view
of this Court, this contention too lacks merit.
34. The Governor in India, similar to the British Crown, is an
integral part of the State Legislature. Whenever there is a bi-
cameral legislature, it consists of the Governor, the Legislative
Assembly and the Legislative Council (see: Article 168). Neither
can the executive Government nor the Governor act contrary
to the provisions of the Constitution or any law. However,
should there be a challenge to any action/decision of a
Governor in Court even on the ground of mala fide, the
immunity provided by Article 361 of the Constitution, which is
Judgment-PIL(L)-10300.2021
complete, would spring into action and bar the Court to either
issue notice to the Governor or to demand an answer. In such
an eventuality, it would be left to the executive Government to
defend the Governor as held in Rameshwar Prasad (supra).
All executive actions taken by the Government of a State, in
exercise of its executive power and which are expressed in the
name of the Governor and duly authenticated in terms of
clauses (1) and (2) of Article 166 of the Constitution, would not
make the Governor answerable to Court. Such being the
Constitutional scheme and the ethos of the
Parliamentary/Cabinet system of Government, it would be
absolutely undesirable as well as inadvisable if a State
Government, which is to defend the Governor, moves Court
aggrieved by any decision or action of the formal or
Constitutional head of the Government of that State. It is,
therefore, not in the interest of the State that the Governor's
action is made liable to a challenge by the same Government
of which he is the formal or Constitutional head.
35. The other connected contention of Mr. Singh that it is for
the recommendees to move the Court against the alleged
inaction of the Governor, is urged to be rejected. The persons
Judgment-PIL(L)-10300.2021
who have been recommended for membership of the
Legislative Council are neither officially supposed to know of
such recommendation, till such time the Governor nominates
them as such members based on the advice of the Council of
Ministers, nor do they acquire any right to enforce a
recommendation in their favour made by such council. Without
the requisite knowledge as well as the right to enforce the
recommendations, they would lack the locus standi to approach
a Court seeking enforcement of such recommendations. Even
otherwise, qua the recommendees, enforcement of
recommendations of the present nature cannot be asked for by
praying for a mandamus to the Governor. This Court is, thus,
of the view that there is no substance in the contention
advanced by Mr. Singh for consideration.
36. The final contention on maintainability is that none from
the weak, needy and marginalized segment of the society has
approached the Court and Constitutional points which are of
academic importance ought not to be decided by it.
37. This Public Interest Litigation involves interpretation of
Constitutional provisions and the questions arising for decision
Judgment-PIL(L)-10300.2021
are of public importance having far-reaching effect. It has never
been the law in this country that a Public Interest Litigation can
only be maintained if it is intended to protect the interest of the
weak, needy or marginalized 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. Indubitably, for those class of people who 'struggle for
justice' despite being legally wronged, the writ courts
exercising public interest litigation jurisdiction are the last
bastion and no number of technical objections to thwart justice
should stand as obstacles in its path.
38. However, one of the purposes for which a Public Interest
Litigation not involving the weak, needy or marginalized people
could be maintained is to 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. It is settled law that if by the act in question, a
specific legal injury to an individual or to 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 "sufficient interest" that would give standing to a
Judgment-PIL(L)-10300.2021
member of the public to maintain a litigation in public interest
has, of course, to be determined by the Court having regard to
the peculiar facts of each individual case and no hard and fast
rule in this behalf can be laid down. While exercising the power
of judicial review in a Public Interest Litigation, the Courts have
to be cautious not to overstep their own limits of judicial
functions and to trespass into the areas which are reserved to
the Executive and the Legislature by the Constitution. 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 the
Court's obligation to act as the custodian of Constitutional
morals and ethics.
39. The decision in S.P. Gupta vs. Union of India,
reported in 1981 Supp SCC 87, apart from being a landmark
decision outlining the contours of a Public Interest Litigation, is
regarded as the parent decision on such subject. It is evident
from the leading judgment delivered by Hon'ble P.N.
Bhagwati,J. (as the former Chief Justice of India then was) that
the first out of several writ petitions, which were under
consideration, was filed before this Court by a group of
practicing advocates who challenged circular letter dated March
Judgment-PIL(L)-10300.2021
18, 1991 addressed by the Law Minister of the Government of
India to the Governor of Punjab and the Chief Ministers of the
other States. The advocates of this Court viewed the circular
letter of the Law Minister as a direct attack on the independence
of the judiciary, which is regarded as a basic feature of the
Constitution, and condemned the circular letter as subservient
of judicial independence leading to a request to the
Government of India to withdraw the circular letter. Since the
circular letter was not withdrawn, Constitutional validity thereof
was challenged seeking a declaration that if consent(s) for
transfer, in furtherance of the circular letter had been given by
any Judge/Judges, the same should be declared null and void.
40. Advocates from across the country had instituted the
other writ petitions before the other High Courts. On transfer,
all the petitions/proceedings were clubbed. The primary
objective of all such writ petitions was to uphold the
independence of the judiciary. It is not that the Judges of the
High Courts, who would stand to be affected if such decision of
the Government of India were implemented, could not have
approached the Court seeking an order for quashing thereof
individually. The Judges certainly did not belong to the week,
Judgment-PIL(L)-10300.2021
needy or marginalized section. On the other hand, the writ
petitions were instituted to protect the independence of the
judiciary, being a basic feature of the Constitution. This Court
is of the view that the contention as raised by Mr. Singh does
not deserve any further consideration in view of the law settled
by the Supreme Court during the last four decades on the scope
and contours of a Public Interest Litigation.
41. Insofar as the contention of Mr. Singh that this Court
ought not to decide any academic issue is concerned, this Court
finds no reason to accept the same too. An issue becomes
academic, ordinarily, when by reason of events subsequent to
institution of proceedings, it does not survive for being decided
by the Court. Had this Court been seized of information that
the Governor has conveyed his decision on the question of
nomination to the Chief Minister, the issue raised herein could
have petered out to be of academic interest. However, no such
information has been laid before this Court. The affidavit of the
State says that no response from the office of the Governor has
been received. In view thereof, and particularly when the issue
arising out of interpretation of Article 171 read with the
provisions of the 1950 Act is one of substantial importance, and
Judgment-PIL(L)-10300.2021
a live issue intrinsically connected with the relief claimed in this
petition, the contention raised is unacceptable. A public law
declaration can indeed be made at the instance of a public-
spirited person, who approaches the Court as a petitioner with
a genuine public cause. Since the petitioner seeks relief to
ensure that the vacant seats of members in the Legislative
Council are filled up without delay, the exercise to pronounce
on the merits of such issue by interpreting the Constitution and
the statutory provisions, instead of being futile, is one which
this Court is bound to determine or else it would fail in its duty
of rendering justice in the cause.
42. This Court may also profitably refer to those line of
decisions laying down the law that if a suitor or a litigant who
initiates an action in public interest is to be turned away at the
threshold merely on the ground that the Governmental action
in question does not affect his interest personally or the interest
of any member of the public, it would leave room for the
Governmental agency to violate the law; and what more can be
prejudicial to the public interest if violation of law by a
Governmental agency is not to be placed under the judicial
scanner only on the ground that the suitor/litigant is not having
Judgment-PIL(L)-10300.2021
sufficient interest. The law is well settled that if no one can have
standing to maintain an action for judicial redress in respect of
a public wrong or a public injury, not only the cause of legality
would suffer but the people not having any judicial remedy to
redress such public injury may turn to the street and in that
process, the rule of law will be seriously impaired; also that, a
breach of public duty, if allowed to go unredressed, because no
one has suffered a specific legal injury, would promote
disrespect for the rule of law. These are the reasons for which
this Court would feel inclined to entertain the petitioner's
concern and determine the questions on interpretation of the
Constitution formulated above.
43. The decision in Rai Bahadur Hurdut Roy Moti Lal Jute
Mills (supra) relied on by Mr. Singh is clearly distinguishable on
facts since, as noted earlier, there is no material on record to
suggest that the Governor has responded to the letter of the
Chief Minister dated November 6, 2020. In any event, the
objection that the writ petition raises an academic issue and
ought not to be decided has been dealt with in the preceding
paragraphs and, therefore, it is held that the cited authority has
no application here.
Judgment-PIL(L)-10300.2021
44. It would be convenient at this juncture to also consider
the other decisions referred to by Mr. Singh in support of his
contentions on maintainability of this Public Interest Litigation.
45. In Jaipur Shahar Hindu Vikas Samiti (supra), the
Supreme Court held that when the interest of the parties can
be protected and the controversy or the dispute adjudicated by
a mechanism created under a particular statute, they should be
relegated to the appropriate forum instead of entertaining the
writ petition filed as a Public Interest Litigation. There is no
mechanism or forum available to the petitioner for redress and
apart from the Supreme Court, this Court is the only other
forum which could be approached. This decision, thus, is of no
assistance for Mr. Singh. Mrinali Shashi Shekhar
Chakravorty (supra) was a decision rendered on a challenge
to the Constitutional validity of the Election Symbols
(Reservation and Allotment) Order, 1968. The prayers were to
freeze the reserved symbols for twenty years and to stay the
effect, operation and execution of the Order. The Court declined
relief since the petitioner was silent about any nexus with the
cause, which was self-shouldered, and it was held that there is
nothing to suggest that none of the affected persons can take
Judgment-PIL(L)-10300.2021
up the cause and approach the Court of law. The discussion
made while negating the contention of Mr. Singh that either the
State Government or the recommendees ought to approach the
Court is sufficient to distinguish the decision under discussion
The decision in Vidyasagar Singh (supra) was referred to for
showing that the Court had expressed disinclination to embark
on an academic discussion on the question as to whether the
Governor acts, in his discretion, under Article 171(3)(e) of the
Constitution, without reference to the Council of Ministers, or
whether he acts under such provision with the aid and advice
of the Council of Ministers, so as to be constitutionally bound
to accept their advice. It has been pointed out to this Court by
the learned Advocate General that in the said decision, the
argument of the Attorney General [who appeared for the Chief
Minister] has been recorded that nomination under Article
171(3)(e) of the Constitution is not made by the Governor in
his discretion, but is made by the Governor in exercise of the
executive power of the State vested in him on the aid and
advice of the Council of Ministers. The submission of the
Attorney General notwithstanding, the subject case did not
require the Bench of the Patna High Court to decide the
Judgment-PIL(L)-10300.2021
question. However, that would not bar a decision by this Court
on the facts of the present case. ICICI Bank Ltd. (supra), a
Full Bench judgment of the Allahabad High Court, held that the
Courts have jurisdiction to decide on points of law only when
those arise in relation to or are incidental to questions raised
by the parties affecting their own rights, liabilities and interest,
but it is a paradox that the Court has no jurisdiction to decide
a question of law, and a question of law only, like a Professor
answering questions of a persistent law student. What this
Court proposes here is to decide a point of law that has arisen
in relation to or is incidental to the concern expressed by the
petitioner affecting the rights of the public in general in not
having the benefit of the Governor's nominees to the Legislative
Council. This decision does not, therefore, help Mr. Singh.
46. The preliminary objections thus stand overruled and the
petition is held to be maintainable.
47. While this Court would now tread the path to answer the
questions involved, as formulated in paragraph 30 supra, it
would record its satisfaction upon conducting some research
that the questions of law presently under consideration have
Judgment-PIL(L)-10300.2021
not been dealt with by the Supreme Court in any earlier
decision, although two decisions of the Allahabad High Court,
cited by Mr. Singh, have considered Article 171 and the Patna
High Court in Vidyasagar Singh (supra) chose not to answer
the question. However, the RoB is what makes this case
different and the questions of law are, thus, res integra.
Significantly, notwithstanding the guidance in fair measure
available from such authorities of the Supreme Court relied on
by the parties, none of them dealt with a situation where the
Governor was alleged to have not exercised a power or
performed a duty, as per the Constitutional mandate. This is
the distinctive feature of this Public Interest Litigation.
48. Before the legal issues are discussed and the questions
answered, this Court may note the relevant provisions of the
Constitution. Part VI of the Constitution deals with "The States".
Article 153 provides that there shall be a Governor for each
State. Article 154 ordains that the executive power of the State
shall be vested in the Governor and shall be exercised by him
either directly or through officers subordinate to him in
accordance with the Constitution. Article 159 prescribes for the
'oath or affirmation by the Governor'. The oath of office
Judgment-PIL(L)-10300.2021
mandates the Governor to the best of his ability, to preserve,
protect and defend the Constitution and the law and to devote
himself to the service and well-being of the people of the State.
Article 163, which provides for Council of Ministers to aid and
advise Governor, falls under the heading "Council of Ministers".
In the context of the controversy in the present proceedings,
Article 163 has been a subject matter of considerable
discussion. It would, thus, be appropriate to extract the same
hereinbelow. It reads thus:-
"Article 163: Council of Ministers to aid and
advise Governor. -
(1) There shall be a Council of Ministers with the
Chief Minister at the head to aid and advise the
Governor in the exercise of his functions, except
in so far as he is by or under this Constitution
required to exercise his functions or any of them
in his discretion.
(2) If any question arises whether any matter
is or is not a matter as respects which the
Governor is by or under this Constitution
required to act in his discretion, the decision of
the Governor in his discretion shall be final, and
the validity of anything done by the Governor
shall not be called in question on the ground that
he ought or ought not to have acted in his
discretion.
(3) The question whether any, and if so what,
advice was tendered by Ministers to the
Governor shall not be inquired into in any Court."
Judgment-PIL(L)-10300.2021
49. The next relevant article is Article 166 falling under the
heading "Conduct of Business of the Government of a State". It
would be necessary to extract Article 166 as "rules of business"
framed by the Governor has some bearing on the issue raised,
and was also a subject matter of debate. Article 166 reads
thus:-
Article 166 Conduct of business of the
Government of a State.- (1) All executive
action of the Government of a State shall be
expressed to be taken in the name of the
Governor.
(2) Orders and other instruments made and
executed in the name of the Governor shall be
authenticated in such manner as may be
specified in rules to be made by the Governor,
and the validity of an order or instrument which
is so authenticated shall not be called in question
on the ground that it is not an order or
instrument made or executed by the Governor.
(3) The Governor shall make rules for the more
convenient transaction of the business of the
Government of the State, and for the allocation
among Ministers of the said business in so far as
it is not business with respect to which the
Governor is by or under this Constitution
required to act in his discretion."
50. This Court next comes to Chapter III in Part VI providing
for "The State Legislature". Article 168 ordains constitution of
Legislatures in States. Clause (1) thereunder provides that for
Judgment-PIL(L)-10300.2021
every State there shall be a Legislature which shall consist of a
Governor (emphasis added), and sub-clause (a) provides that
for the States as notified therein, there shall be 'two houses'.
Included in the said sub-clause is the State of Maharashtra, As
per clause (2), one of the houses shall be known as "Legislative
Council" and the other shall be known as "Legislative
Assembly". Thereafter comes Article 171, which is the heart of
the present proceedings. It provides for 'Composition of the
Legislative Councils'.
51. The Governor of Maharashtra, in exercise of the powers
conferred by clause (3) of Article 166 of the Constitution, has
framed the RoB, which was brought into force from July 1,
1975. Rules 9, 12 and 15 are required to be noted. They read
thus:
"Rule 9
All cases referred to in the Second Schedule shall
be brought before the Council-
(i) by the direction of the Governor under clause
(c) of Article 167;
(ii) by the direction of -
(a) the Chief Minister ; or
(b) the Minister-in-charge of the case with the
consent of the Chief Minister:
Judgment-PIL(L)-10300.2021
Provided that, no case in regard to which
the Finance Department is required to be
consulted under rule 11 shall, save in exceptional
circumstances under the directions of the Chief
Minister, be discussed by the Council unless the
Finance Minister has had opportunity for its
consideration.
Rule 12
All orders or instruments made or executed by on
behalf of the Government of the State shall be
expressed to be made by or by order of or
executed in the name of the Governor.
Rule 15
These Rules may to such extent as necessary be
supplemented by instructions to be issued by the
Governor on the advice of the Chief Minister."
52. The Second Schedule to the RoB contains "Instructions
regarding the Business of the Government issued under Rule
15 of the RoB". Paragraph 15 provides for the classes of cases
which "shall" be submitted to the Chief Minister before the
issuance of order, under which clause (x) provides for proposals
to nominate members of the Legislative Council under Article
171(3)(e). 15(2) provides for cases which shall be submitted
by the Chief Minister to the Governor before issuance of orders.
Instruction-15(1)(x) and 15(2)(vi) read thus:
Judgment-PIL(L)-10300.2021
15 (1) (x)
Proposal to nominate members of the Legislative
Council under Article 171(3)(e);
Rule 15 (2) (vi)
Cases relating to the nomination of members to
either House of the State Legislature;
53. Instruction-16 of the said "Instructions" is also relevant.
It is proposed to be considered at a later part of this judgment.
54. Having noted the relevant Articles of the Constitution and
the RoB, this Court may observe that what falls for
interpretation is a fine interplay between what Article 163
ordains in its applicability to the powers of the Governor
conferred under clauses (3)(e) and (5) of Article 171 read with
section 10 of the 1950 Act and the Third Schedule to nominate
members to the Legislative Council and the provisions of the
RoB insofar as they touch the applicability, effect and operation
of such articles of the Constitution. On this backdrop, sub-
clause (e), which is the subject matter of debate, would be
required to be seen. Sub-clause (e) provides that the
remainder, i.e., the percentage of the members which would
remain after sub-clauses (a) to (d) of clause 3 are utilized,
"shall" be nominated by the Governor in accordance with the
Judgment-PIL(L)-10300.2021
provisions of clause (5). The word "shall" indicates that it is a
mandate and a Constitutional duty is cast upon the Governor
to nominate such remaining members which again shall be in
accordance with clause (5) of Article 171. The wording of clause
(5) also is a mandate to the Governor to nominate members to
the Legislative Council, as it uses the words "shall consist of"
so as to appoint persons having special knowledge or practical
experience in respect of such matters as specified, namely,
literature, science, art, co-operative movement and social
service. A cumulative reading of clauses (3)(e) and (5) of
Article 171 and section 10 of the 1950 Act brings about a
consequence that such members to be nominated by the
Governor shall be persons of the nature as contained in clause
(5) of such article. Once clause (5) read with section 10 of the
1950 Act confers a power on the Governor, certainly such
exercise of power would be coupled with a duty to adhere to
the mandate as prescribed by clause (5), namely, that such
persons, who would be nominated by the Governor, do not fall
outside the stipulations as contained in clause (5).
55. The question, therefore, is as to in what manner the
Governor would exercise such powers under clause (5) of
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Article 171 read with section 10 of the 1950 Act. For such
exercise, in this Court's opinion, undoubtedly the provisions of
Article 163 would come into play, which provides that the
Council of Ministers would aid and advice the Governor with the
Chief Minister at its head. However, there is an exception
provided by clause (1) of Article 163, namely, that such aid and
advice by the Council of Ministers would be excepting such
issues where the Governor would exercise his functions in his
discretion. Thus, the corollary would be as to whether the
powers under clauses (3)(e) and (5) of Article 171 read with
section 10 of the 1950 Act would be a power to be recognized,
being exercised by the Governor in his discretion. It appears to
be quite settled that wherever the Constitution intended the
Governor to exercise his powers/functions in his discretion, the
Constitution has specifically so provided; also, discretion has
been read into certain other articles by judicial
pronouncements.
56. Having noted the relevant provisions of law, it would now
be profitable to discuss the facts in Nabam Rebia (supra) and
M.P. Special Police Establishment (supra) in some detail
Judgment-PIL(L)-10300.2021
since much has been argued by either side based on such
authorities.
57. The civil appeals decided by the 5-Judge Constitution
Bench by its decision in Nabam Rebia (supra) arose out of a
common order dated January 13, 2016 of the Gauhati High
Court. The bare facts sufficient for understanding the
conclusions recorded by the Court are these. The 5th Session
of the Arunachal Pradesh Legislative Assembly concluded on
October 21, 2015. On November 3, 2015, the Governor of
Arunachal Pradesh issued an order summoning the 6th Session
of the Assembly to meet on January 14, 2016. Such order was
passed by the Governor, on the aid and advice of the Chief
Minister, and in consultation with the Speaker of the House.
The 6th Session of the House was, however, preponed by the
Governor by an order dated December 12, 2015 from January
14, 2016 to December 16, 2015, indicating, inter alia, the
manner in which the proceedings of the House should be
conducted. In support thereof, the Governor issued a message
on December 9, 2015. According to the appellants, these
actions of the Governor demonstrated an extraneous and
inappropriate exercise of constitutional authority. The above
Judgment-PIL(L)-10300.2021
order and message of the Governor, without the aid and advice
of the Council of Ministers and the Chief Minister, thus,
constituted the foundation of the challenge raised by the
appellants.
57.1. The order dated December 12, 2015 was prompted by
a notice of resolution for the removal of the Speaker, Nabam
Rebia, coupled with the assumption that a constitutional
obligation was cast on the Governor to ensure that the said
resolution was expeditiously taken up for consideration,
because any delay in taking up the same on the scheduled date
of summoning of the 6th Session of the House (January 14,
2016) would "... cause damage to the goals and ideals of the
provisions of the Constitution, besides the Conduct of Business
Rules ..."; and that, the Governor was not obliged, in the
peculiar background to seek the advice of the Chief Minister
and his Council of Ministers. Admittedly, the Governor had
issued the above order at his own, without any aid and advice.
57.2. From the opinion rendered by Hon'ble Madan B. Lokur, J.,
this Court finds the questions that, in the opinion of His
Lordship, emerged for the decision of the Court, viz.
Judgment-PIL(L)-10300.2021
"244.1. Whether, after having notified the dates of
sitting of the Legislative Assembly in consultation with
the Chief Minister and the Speaker of the House, the
Governor of Arunachal Pradesh could cancel those
dates in the exercise of 'power' under Article 174(1) of
the Constitution and in the exercise of discretion under
Article 163 of the Constitution?
244.2. Whether, after having notified the dates of
sitting of the Legislative Assembly in consultation with
the Chief Minister and the Speaker of the House, the
Governor of Arunachal Pradesh could unilaterally alter
and reschedule those notified dates in the exercise of
'power' under Article 174(1) of the Constitution read
with Article 163 of the Constitution by issuing a fresh
notification?
244.3. Whether generally, in the exercise of discretion
under Article 163(1) of the Constitution read with
Article 174(1) of the Constitution and notwithstanding
the relevant rules framed by the Legislative Assembly
under Article 208 of the Constitution, the Governor of
Arunachal Pradesh could summon the Legislative
Assembly without consulting the Chief Minister and the
Speaker of the House?
244.4. Whether the message sent by the Governor of
Arunachal Pradesh on 9-12-2015 under Article 175(2)
of the Constitution was a constitutionally valid
message that ought to have been (and was) acted
upon by the Legislative Assembly?"
57.3. It is, therefore, clear from the above questions that
they are distinct and different from the questions that this Court
Judgment-PIL(L)-10300.2021
is tasked to decide. However, the discussions provide able
guidance to us and hence shall be noted in some detail.
57.4. The facts and circumstances preceding issuance of the
order dated December 12, 2015 by the Governor find detailed
narration in the judgment, reiteration whereof is not considered
necessary for a decision by us. Suffice it to record, the Supreme
Court came down heavily against the impugned orders of the
incumbent Governor of Arunachal Pradesh because the same
were not in accord with accepted Constitutional norms and
principles in regard to powers and functions of the Governor of
a State. In fact, findings were returned that the impugned
orders were violative of Article 163 read with Article 174 of the
Constitution. Not only that, provisions of Article 163 of the
Constitution were read and interpreted to limit clause (2) as
not being all-pervasive.
57.5. The argument advanced by the respondents before the
Supreme Court based on clause (2) of Article 163 was repelled
in the lead judgment in the following words:
"148. The above position leaves no room for any doubt
that the Governor cannot be seen to have such powers
and functions, as would assign to him a dominating
Judgment-PIL(L)-10300.2021
position, over the State Executive and the State
Legislature. The interpretation placed on Article
163(2), on behalf of the respondents, has just that
effect, because of the following contentions advanced
on behalf of the respondents. Firstly, whenever a
question arises, whether in discharging a particular
function, the Governor can or cannot act in his own
discretion. According to the respondents, the
discretion of the Governor, on the above question, is
final. Secondly, since the provision itself postulates,
that '... the decision of the Governor in his discretion
shall be final, and the validity of anything done by the
Governor shall not be called in question on the ground
that he ought or ought not to have acted in his
discretion ...', according to the respondents, makes the
Governor's orders based on his own discretion,
immune from judicial review. Accepting the above
position, will convert the Governor into an all-
pervading super-constitutional authority. This position
is not acceptable because an examination of the
executive and legislative functions of the Governor,
from the surrounding provisions of the Constitution
clearly brings out that the Governor has not been
assigned any significant role either in the executive or
the legislative functioning of the State. The position
adopted on behalf of the appellants, on the other hand,
augurs well in an overall harmonious construction of
the provisions of the Constitution. Even on a cursory
examination of the relevant provisions of the
Constitution, we are inclined to accept the contention
advanced on behalf of the appellants."
57.6. The aforesaid paragraph was immediately followed by
reference to the Constituent Assembly Debates on draft Article
143, which subsequently appeared in the Constitution as Article
163. Next, reference to the Justice Sarkaria Commission Report
on "Centre-State Relations" and the Justice M.M. Punchhi
Judgment-PIL(L)-10300.2021
Commission Report on "Constitutional Governance and the
Management of Centre-State Relations" were made. The Court
endorsed and adopted para 4.5 of the latter report as a correct
expression of the Constitutional interpretation, with reference
to the issue under consideration.
57.7. After referring to the 7-Judge Constitution Bench
decision in Samsher Singh vs. State of Punjab, reported in
(1974) 2 SCC 831, the conclusions were recorded as under:
"155. We may, therefore, summarise our conclusions
as under:
155.1. Firstly, the measure of discretionary power of
the Governor, is limited to the scope postulated
therefor, under Article 163(1).
155.2. Secondly, under Article 163(1) the
discretionary power of the Governor extends to
situations, wherein a constitutional provision expressly
requires the Governor to act in his own discretion.
155.3. Thirdly, the Governor can additionally
discharge functions in his own discretion, where such
intent emerges from a legitimate interpretation of the
provision concerned, and the same cannot be
construed otherwise.
155.4. Fourthly, in situations where this Court has
declared that the Governor should exercise the
particular function at his own and without any aid or
advice because of the impermissibility of the other
alternative, by reason of conflict of interest.
Judgment-PIL(L)-10300.2021
155.5. Fifthly, the submission advanced on behalf of
the respondents, that the exercise of discretion under
Article 163(2) is final and beyond the scope of judicial
review cannot be accepted. Firstly, because we have
rejected the submission advanced by the respondents,
that the scope and extent of discretion vested with the
Governor has to be ascertained from Article 163(2), on
the basis whereof the submission was canvassed. And
secondly, any discretion exercised beyond the
Governor's jurisdictional authority, would certainly be
subject to judicial review.
155.6. Sixthly, in view of the conclusion drawn at
fifthly above [para 155.5], the judgments rendered in
Mahabir Prasad Sharma case (72 CWN 328), and
Pratapsingh Raojirao Rane case (AIR 1999 Bom 53),
by the High Courts of Calcutta and Bombay,
respectively, do not lay down the correct legal
position. The constitutional position declared therein,
with reference to Article 163(2), is accordingly hereby
set aside."
57.8. Mr. Dada referred to paragraphs 257 and 258 of the
concurring opinion rendered by Hon'ble Madan B. Lokur, J. This
Court deems it appropriate to reproduce the same hereinbelow:
"Conclusions on Article 163 of the Constitution
257. The sum and substance of the historical
background leading to Article 163 of the Constitution,
as enacted, is this: (i) The Council of Ministers will aid
and advise the Governor in the exercise of his
functions. This is the first part of Article 163(1) of the
Constitution. The Governor then has two options -- (a)
To reject the aid and advice of the Council of Ministers
and act in 'his individual judgment'. This is an illusory
Judgment-PIL(L)-10300.2021
and non-existent option since the Constitution does
not permit it. (b) To act on the aid and advice of the
Council of Ministers. By default this is the only real
option available to him. (ii) If the exercise of function
is beyond the purview of the aid and advice of the
Council of Ministers but is by or under the Constitution,
the Governor can act 'in his discretion'. Article 163(2)
of the Constitution will have reference only to the last
part of Article 163(1) of the Constitution and is not all-
pervasive.
258. If there is a breakdown in communications
between the Council of Ministers and the Governor (as
imagined by Mr Churchill), then the Governor will not
have the benefit of the aid and advice of the Council of
Ministers. In that event, the Governor may 'take the
matter into his own hands and act freely'. The
breakdown of communications was a possibility under
the Government of India Act, 1935 since it was 'in the
main undemocratic' and there could be a breakdown
of communications between the representative of His
Majesty and the Council of Ministers. However, if such
a situation were to arise today in Independent India,
namely, a breakdown of communications between the
Governor of a State and the Council of Ministers, it
would be most unfortunate and detrimental to our
democracy. In the unlikely event of a complete
breakdown of communications, the President can and
must intervene to bring in constitutional order."
57.9 Hon'ble Madan B. Lokur, J., in concluding the opinion,
ruled that:
"361. Under Article 163(1) of the Constitution, the
Governor is bound by the advice of his Council of
Ministers. There are only three exceptions ["except
insofar as"] to this:
Judgment-PIL(L)-10300.2021
(i) The Governor may, in the exercise of his
functions, act in his discretion as conferred by
the Constitution;
(ii) The Governor may, in the exercise of his
functions, act in his discretion as conferred
under the Constitution; and
(iii) The Governor may, in the exercise of his
functions, act in his individual judgment in
instances specified by the Constitution."
(italics in original)
58. All the observations and statements of law made by the
Court in Nabam Rebia (supra) have to be read in the context
of the issue directly under consideration, i.e., summoning of
the Legislative Assembly by the Governor in his own discretion
and its legality and validity on the touchstone of the powers
conferred on the Governor by the Constitution. Although this
Court is not seized of an issue remotely connected with
summoning of the Legislative Assembly, the discussions in the
decision, insofar as they outline the situations/circumstances
where the Governor under the Constitutional scheme could act
"in his discretion" or "in his judgment", would be of immense
utility.
59. It would be pertinent at this juncture to observe that
interpretation of Article 163 by the bench of two learned Judges
Judgment-PIL(L)-10300.2021
in the decision in Justice R.A. Mehta (supra) was considered
in Nabam Rebia (supra) but the interpretation of the
Constitution Bench on such article in the latter decision does
not seem to favour the interpretation in the former.
60. In M.P. Special Police Establishment (supra), the
question for consideration was whether a Governor can act in
his discretion and against the aid and advice of the Council of
Ministers in a matter of grant of sanction for prosecution of
Ministers for offences under the Prevention of Corruption Act
and/or under the Indian Penal Code.
60.1. The facts reveal that sanction to prosecute two
ministers (the respective fourth respondents in the appeals)
had been sought. The relevant Council of Ministers had refused
sanction for prosecution of such ministers on the ground that
there was not an iota of material available against both of them
from which it could be inferred that they had entered into a
criminal conspiracy with anyone and also that no prima facie
case had been made out against them. The Governor then
considered grant of sanction keeping in view the decision of the
Council of Ministers. The Governor opined that the available
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documents and the evidence were enough to show that a prima
facie case for prosecution had been made out. The Governor,
accordingly, granted sanction for prosecution under Section
197 of the Criminal Procedure Code. The ministers then
instituted separate writ proceedings before the Madhya Pradesh
High Court assailing the order of the Governor, which
succeeded. A Single Judge of the High Court held that granting
sanction for prosecuting the ministers was not a function which
could be exercised by the Governor "in his discretion" within
the meaning of these words as used in Article 163 of the
Constitution. It was held that the Governor could not act
contrary to the "aid and advice" of the Council of Ministers. It
was further held that the doctrine of bias could not be applied
against the entire Council of Ministers and that the doctrine of
necessity could not be invoked on the facts of the case to
enable the Governor to act "in his discretion". The two letters
patent appeals carried from the orders of the writ court were
dismissed by the judgment under challenge before the
Supreme Court. The Division Bench upheld the reasoning and
judgment of the writ court.
Judgment-PIL(L)-10300.2021
60.2. Having regard to the importance of the question
involved, the civil appeals were directed to be placed before a
Bench of five Judges. The Constitution Bench, speaking through
Hon'ble S.N. Variava, J. (as His Lordship then was) noticed the
decision of the Constitution Bench comprising seven Judges in
Samsher Singh (supra), where exceptional situations when
the Governor could act in his discretion were delineated. The
statement of law in paragraph 154 of the decision in Samsher
Singh (supra) was quoted, which reads:
"154. We declare the law of this branch of our
Constitution to be that the President and Governor,
custodians of all executive and other powers under
various articles shall, by virtue of these provisions,
exercise their formal constitutional powers only upon
and in accordance with the advice of their Ministers
save in a few well-known exceptional situations.
Without being dogmatic or exhaustive, these
situations relate to (a) the choice of Prime Minister
(Chief Minister), restricted though this choice is by the
paramount consideration that he should command a
majority in the House; (b) the dismissal of a
Government which has lost its majority in the House,
but refuses to quit office; (c) the dissolution of the
House where an appeal to the country is necessitous,
although in this area the head of State should avoid
getting involved in politics and must be advised by his
Prime Minister (Chief Minister) who will eventually take
the responsibility for the step. We do not examine in
detail the constitutional proprieties in these
predicaments except to utter the caution that even
here the action must be compelled by the peril to
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democracy and the appeal to the House or to the
country must become blatantly obligatory. ***"
This was followed by the statement of law, reading as under:
"Thus, as rightly pointed out by Mr Sorabjee, a seven-
Judge Bench of this Court has already held that the
normal rule is that the Governor acts on the aid and
advice of the Council of Ministers and not
independently or contrary to it. But there are
exceptions under which the Governor can act in his
own discretion. Some of the exceptions are as set out
hereinabove. It is, however, clarified that the
exceptions mentioned in the judgment are not
exhaustive. It is also recognised that the concept of
the Governor acting in his discretion or exercising
independent judgment is not alien to the Constitution.
It is recognised that there may be situations where by
reason of peril to democracy or democratic principles,
an action may be compelled which from its nature is
not amenable to Ministerial advice. Such a situation
may be where bias is inherent and/or manifest in the
advice of the Council of Ministers."
60.3. The Court then proceeded to reiterate that undoubtedly,
in the matter of grant of sanction to prosecute, the Governor is
normally required to act on the aid and advice of the Council of
Ministers and not in his discretion. However, an exception may
arise whilst considering grant of sanction to prosecute a Chief
Minister or a Minister where as a matter of propriety, the
Governor may have to act in his own discretion. Similar would
Judgment-PIL(L)-10300.2021
be the situation if the Council of Ministers disables itself or
disentitles itself.
60.4. Ultimately, upon hearing the parties and on the basis
of materials before it, the Supreme Court felt no hesitation to
hold that the decision of the Council of Ministers was ex facie
irrational whereas the decision of the Governor was not. While
setting aside the judgments of the high court and, in effect,
dismissing the writ petitions, the following observations were
made:
"33. *** We also presume that a high authority like
the Council of Ministers will normally act in a bona fide
manner, fairly, honestly and in accordance with law.
However, on those rare occasions where on facts the
bias becomes apparent and/or the decision of the
Council of Ministers is shown to be irrational and based
on non-consideration of relevant factors, the Governor
would be right, on the facts of that case, to act in his
own discretion and grant sanction."
61. Let it now be ascertained what was said of M.P. Special
Police Establishment (supra) by the Bench in Nabam Rebia
(supra).
62. Hon'ble J.S. Khehar, J. noticed the decision in M.P.
Special Police Establishment (supra) in paragraphs 116,
118, and 128 of His Lordship's judgment. This Court has not
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been able to find any statement of law in such judgment which
dilutes the ratio of the decision in M.P. Special Police
Establishment (supra).
63. Hon'ble Madan B. Lokur, J. noticed M.P. Special Police
Establishment (supra) in paragraphs 314, 315, 326, and 362.
The relevant observations read as follows:
"314. Adding to the exceptions already noted by this
Court where the Governor could act despite the advice
of the Council of Ministers, yet another exclusionary
situation was carved out by the Constitution Bench--
in this case, on the ground of propriety. It was held in
M.P. Special Police Establishment case: (SCC p. 802,
para 19)
'19. ... Undoubtedly, in a matter of grant of
sanction to prosecute, the Governor is normally
required to act on aid and advice of the Council of
Ministers and not in his discretion. However, an
exception may arise whilst considering grant of
sanction to prosecute a Chief Minister or a Minister
where as a matter of propriety the Governor may
have to act in his own discretion."
315. It was observed that in such a case, if the
Governor cannot act in his discretion then there could
be a complete breakdown of the rule of law. It was
observed (with respect, in an exaggerated manner)
that democracy itself would be at stake. It was said in
M.P. Special Police Establishment case: (SCC pp. 805-
06, para 32)
'32. If, on these facts and circumstances, the
Governor cannot act in his own discretion there
would be a complete breakdown of the rule of law
inasmuch as it would then be open for
Governments to refuse sanction in spite of
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overwhelming material showing that a prima facie
case is made out. If, in cases where a prima facie
case is clearly made out, sanction to prosecute
high functionaries is refused or withheld,
democracy itself will be at stake. It would then
lead to a situation where people in power may
break the law with impunity safe in the knowledge
that they will not be prosecuted as the requisite
sanction will not be granted'."
***
"326. *** To the above example may be added the
view of this Court expressed in M.P. Special Police
Establishment."
"362. The development of constitutional law in India
and some rather peculiar and extraordinary situations
have led to the evolution of a distinct category of
functions, in addition to those postulated or imagined
by the Constitution and identified above. These are
functions in which the Governor acts by the
Constitution and of constitutional necessity in view of
the peculiar and extraordinary situation such as that
which arose in M.P. Special Police Establishment and
as arise in situations relating to Article 356 of the
Constitution or in choosing a person to be the leader
of the Legislative Assembly and the Chief Minister of
the State by proving his majority in the Legislative
Assembly."
64. A bare reading of the aforesaid discussion would reveal a
study in contrast insofar as the two Constitution Bench
decisions are concerned. While in M.P. Special Police
Establishment (supra) the Governor's refusal to accept the
advice of the Council of Ministers not to grant sanction for
prosecution of two ministers on the ground of propriety was
Judgment-PIL(L)-10300.2021
held to be within the Governor's discretion by the Constitution
Bench, summoning of the Legislative Assembly by the Governor
in Nabam Rebia (supra) was held to be beyond the
discretionary powers conferred by the Constitution on such
Governor. The facts in Nabam Rebia (supra) showed
disquieting signs of a growing interference by the Governor
beyond Constitutional limits, which was interdicted, whereas
M.P. Special Police Establishment (supra) was a decision
affirming the position in law that in the matter of non-grant of
sanction for prosecution of ministers, vices in the decision-
making process such as bias, irrationality and non-
consideration of relevant factors, would empower the Governor
to act in his own discretion.
65. True, it has been held in Nabam Rebia (supra) that
accepting the primacy of clause (2) of Article 163 would convert
the Governor to an all pervading super-constitutional authority,
which is not envisaged under the Constitution, and that the
principle of cabinet responsibility firmly entrenched in our
Constitution does not accept any parallel administration by the
Governor. Since Nabam Rebia (supra) is the last decision of
the Supreme Court considering almost all previous decisions
Judgment-PIL(L)-10300.2021
including M.P. Special Police Establishment (supra), the
same is binding on all Courts under Article 141 of the
Constitution. It is an authority for the propositions to be found
in paragraph 155 of the leading judgment of Hon'ble J.S.
Khehar. Inter alia, the authoritative statements of law are that
the Governor could additionally discharge functions in his own
discretion, where (i) such intent emerges from a legitimate
interpretation of the provision concerned, and the same cannot
be construed otherwise; and (ii) in situations where this Court
has declared that the Governor should exercise the particular
function at his own and without any aid or advice because of
the impermissibility of the other alternative, by reason of
conflict of interest.
66. However, as noted above, the factual matrix and the legal
position this Court is seized of seems to be singularly singular
in the sense that there is no reported decision of the Supreme
Court interpreting Article 171 of the Constitution read with
Section 10 of the 1950 Act, or such provisions read with the
RoB and the Instructions forming part of it, and laying down
the law that the Governor, while nominating members of the
Legislative Council, has or lacks the discretion to take a view
Judgment-PIL(L)-10300.2021
different from the one taken by the Council of Ministers. It is in
such scenario that this Court proceeds to decide the second
question.
67. The first and foremost point to be borne in mind is that
the judgments of Courts are not to be read as statutes. Also, it
is settled law that a decision is an authority for what it actually
decides and not what can logically be deduced therefrom. Of
course, the decisions of Constitution Benches while answering
different but related questions would obviously be of persuasive
value.
68. In our Constitutional scheme, apart from the Supreme
Court, the High Courts are Constitutional courts too and
declaration of law on interpretation of the provisions of the
Constitution by the High Courts is an integral process of the
justice delivery system. Paragraph 155.4 of the decision in
Nabam Rebia (supra) cannot be read and understood as
foreclosing the authority of any of the High Courts to say, in a
given case that arises before it for consideration, that the
Governor should or should not exercise the particular function
on his own. The judgment, and in particular the conclusion
Judgment-PIL(L)-10300.2021
under consideration, does not lay down the law that only in
cases where the Supreme Court by its judicial interpretation of
the Constitution has held that the Governor can act on his own
or in his discretion, he may but not otherwise. If a particular
article on powers exercisable by the Governor has not been
interpreted by the Supreme Court and such article requires
interpretation, as in the present case, it ought to be the duty
of this Court to make a pronouncement upon just and proper
interpretation of such an article. Significantly, that Article 171
was not even remotely under consideration in Nabam Rebia
(supra) would be evident on reading of the leading judgment
of Hon'ble J.S. Khehar, J., and particularly the discussion in
paragraph 307 authored by Hon'ble Madan B. Lokur, J. There,
an observation from the concurring view of Hon'ble P.N.
Bhagwati and Hon'ble V.R. Krishna Iyer, JJ., in Samsher Singh
(supra), that if the Governor were held entitled to exercise his
powers personally, then that interpretation would extend to
several articles of the Constitution, was noted. An additional
reference by the learned Judge was made to Article 239(2).
Clause (3) read with clause (5) of Article 171 could have been
Judgment-PIL(L)-10300.2021
a further addition to the list of articles, which perhaps was
overlooked. Be that as it may.
69. To take shape, a Parliamentary form of Government has
election as its plinth. Article 171 read with Section 10 of the
1950 Act provides not only election of members to the
Legislative Council but also inclusion by way of nomination.
Similarly, Article 333 permits nomination, in certain situations,
of a member of the Anglo-Indian community to the Legislative
Assembly. That is exactly the reason why the RoB in
Instruction-15(2)(vi) includes nomination to both houses of the
Legislative Assembly as a case which is to be placed before the
Governor by the Chief Minister. The provision for nomination,
which is an inroad into the principle of election, thus has to be
given its due weight. There can be no dispute that proper care
and caution should be exercised to ensure that the power of
nomination is not misused or abused to achieve narrow political
gains.
70. This would necessitate the Court to ascertain the reason
for inclusion of members in the Legislative Council, who would
thereby be part of the State Legislature, and participate in
Judgment-PIL(L)-10300.2021
legislative functions. A peep into the Constituent Assembly
debates would reveal that what is Article 171 now, was draft
Article 150. Series of debates and deliberations were conducted
by the members upon looking into the draft prepared by the
Drafting Committee as to whether composition of the Upper
Chamber/House ought to be left for the Parliament to decide or
whether such composition should be decided upon by the
Constituent Assembly itself. The members had serious
differences of opinion. What this Court ultimately finds is that
harmony was struck and, Article 171 was introduced with
incorporation of clauses (2) and (3). It further appears on
reading the debates that provisions for an Upper
Chamber/House in some of the Legislative Assemblies was
conceived with the idea that such Upper Chamber/House, to
comprise of the intelligentsia, would be the revising body of
legislations enacted by the Lower Chamber/House. Also, one of
the members [Prof. K.T. Shah] expressed that the Governor will
act presumably on the advice of the party in power. However,
what intrigues this Court is whether it could be the intention
that nomination was to provide a route for defeated candidates
in an election to gain entry in the Legislature? Or, could it be
Judgment-PIL(L)-10300.2021
intended to facilitate increase of numerical strength in the
Legislature of the party/coalition parties in power? Or, was it
intended in larger public interest to have the wisdom of those
members for enacting laws who, despite having special
knowledge or practical experience in the identified spheres,
were not willing to contest elections and, thus, become
members of the Legislative Assembly? The answers to the first
two questions must be an emphatic "NO", whereas answering
the third in the affirmative would be in conformity with what
the Constituent Assembly felt appropriate for the country's
future qua enactment of laws. If indeed that is the approach to
be adopted, it is imperative that decisions are taken keeping
public interest in mind above self-interest or interest of any
political party.
71. In the humble opinion of this Court, the offices of the
Governor and the Chief Minister of a State, or for that matter
the Council of Ministers, are entitled to respect from each other
as well as other Constitutional functionaries in fair measure, the
ever-expanding uncertainties of political unrest
notwithstanding. For the Government to function smoothly and
in an orderly manner, as ordained by the Constitution, abidance
Judgment-PIL(L)-10300.2021
to Constitutional norms and ethos is non-negotiable and there
is absolutely no place for decisions based on personal whims or
caprices of what, in the perception of the Council of Ministers,
is good for the State. Any possible abuse of power by any
Constitutional authority, as the recent history would bear
testimony, has to be eschewed.
72. Reverting to present times, it has to be presumed that
names of those who have been recommended by the Council of
Ministers and forwarded to the Governor of Maharashtra are
based on valid considerations of what would serve the State's
interest, a fortiori, the public's interest best. However, any
inadvertent error or an approach which may not strictly be as
per the Constitutional ethos cannot simply be wished away.
Indeed, the high 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. Having regard to the terms
of clauses (1) and (2) of Article 166 of the Constitution as well
as taking the entire Constitutional scheme in perspective in
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regard to exercise of the executive power of the State, this
Court is of the opinion that 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. There could be umpteen number of
cases which are not required to be placed before the Governor,
yet, upon the approval of the Minister-in-Charge of the
concerned department, orders could be issued expressed in the
name of the Governor. The only requirement is that such orders
must be duly authenticated. It is only in respect of those cases
included in Instruction-15(2) appended to the RoB which have,
as of necessity, to be submitted by the Chief Minister to the
Governor before the issue of orders and the Governor has to
consider and approve/concur such cases only; therefore, if a
particular case is not included in Instruction-15(2), the
Government, in accordance with the other provisions of the
RoB, may proceed to take executive action and any such action
expressed to be taken in the name of the Governor in an order
or instrument, which is duly authenticated, also in terms of the
RoB, is not liable to be questioned on the ground that it is not
an order or instrument made or executed by the Governor. Take
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for instance, appointment of judicial officers in the district
judiciary. The recommendations of the High Court that a certain
number of selected candidates should be appointed as judicial
officers not being included in Instruction-15(2), it is not
required to be placed before the Governor by the Chief Minister
before the issue of orders, whereas cases pertaining to
appointment of High Court Judges, being included in
Instruction-15(2)(xvii), the Chief Minister is bound to place
such case before the Governor for his approval/concurrence, as
the case may be. A distinction, therefore, has to be drawn
between cases where executive action is expressed in the name
of the Governor and are duly authenticated, without execution
of the order or instrument by the Governor, and orders or
instruments which are issued after prior approval/concurrence
of the Governor.
73. 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 same principle is equally true
of the Council of Ministers too and it has to be remembered that
such Council, though being the real head controlling both
Judgment-PIL(L)-10300.2021
legislative and executive functions, is also not envisaged under
the Constitution to be a super-constitutional authority. A high
authority like the Council of Ministers, it is presumed, will
normally act bona fide, fairly, honestly and in accordance with
law since such Council is expected to comprise of humans of
goodwill and generosity who can unite regardless of party or
politics in times of crises. However, this Court at this stage is
reminded of the famous saying of the German philosopher
Friedrich Nietzsche, that "(A) politician divides mankind into
two classes: tools and enemies". Experience has shown the
extent of corruption in all activities of public functioning
including the corridors of politics, eradication whereof should
be the prime object of all well-intentioned people of the country.
Securing the purity and probity in public life and preventing
criminalization of politics are what the society should aim for.
The pernicious effect of not reading a limited 'discretion'
preserved for the Governor 'by the Constitution' in Article 171
and/or 'under the Constitution' in the RoB cannot be kept out
of consideration in present day realities of life when judicial
authorities are in abundance striking down acts of the executive
Judgment-PIL(L)-10300.2021
Government acting through the Council of Ministers, or even
Governors, as ultra vires the Constitution.
74. Sustenance for the point under consideration can be
drawn from the instances referred to hereafter. The fields from
which the members to be nominated to the Legislative Council
are enumerated in clause (5) of Article 171 as "(L)iterature,
science, art, co-operative movement and social service". The
following questions come to mind. Should the name of one or
few, recommended by the Council of Ministers, be not referable
to any of the aforesaid fields, even remotely, is the Governor
under any compulsion to blindly nominate such ineligible
recommendee(s) as member(s) of the Legislative Council? Or,
take a case where a recommendation is made in favour of an
individual overlooking Article 191 of the Constitution, which
lays down factors for disqualification to be a member of the
Legislative Council? Or, take the case of a dreaded criminal who
is facing grave charges in multiple cases in courts of law but is
fortuitously out on bail? If the Governor does not wish to have
such alleged law-breaker as a law-maker, is he not, in the least,
seized of the power to request the Council to have a re-look at
such name to avoid embarrassment of the Government of
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which he is the formal or Constitutional head? In the considered
view of this Court, these particular instances could come under
the category of choices made by the Council of Ministers
without consideration of all materials or under the category of
irrational choices and this Court is inclined to the view that in
all such cases, or in other cases (for which an exhaustive list
cannot be prepared), it would be open to the Governor not to
act as a rubber-stamp authority on grounds of propriety. This
Court, thus, holds that it is not impermissible to read an implied
authorization, in the provisions of section 10 of the 1950 Act
and the Third Schedule read with clauses (3)(e) and (5) of
Article 171 of the Constitution, for the Governor to examine
whether the recommendees ought to be nominated.
75. Responding to a query of the Court as to whether the
Governor despite finding some material against some of the
recommendees is of the view that on grounds of propriety or
otherwise but on valid reasons, such recommendees should not
be nominated and the course of action that would be open to
the Governor in such a case, Mr. Chinoy fairly conceded that in
such an exceptional case, the Governor can send back such
name(s).
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76. This Court, however, does not propose to proceed on any
concession that might have been made in course of hearing.
Arguendo, even if the Governor is not empowered 'by the
Constitution', it is observed that 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. Although referred to earlier, it is considered
necessary to have a relook at the provisions of the RoB. Rule 9
of the RoB lays down that all cases referred to in the Second
Schedule shall be brought before the Council, inter alia, by the
direction of the Chief Minister or Minister-in-charge of the case
with the consent of the Chief Minister. Rule 15 of the RoB
authorizes the Rules to be supplemented by instructions, to
such extent, to be issued by the Governor on the advice of the
Chief Minister. Instructions, issued under Rule 15 of the RoB,
have been issued to supplement the RoB. Such instructions are
in six parts, with Part-I providing definitions of various terms
used in the Instructions. Instruction-4 provides that, except as
otherwise provided in the Instructions, cases shall ordinarily be
disposed of by, or under the authority, of the Minister-in-
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charge, in the manner specified therein. Instruction-15 under
Part-II lists classes of cases that shall be submitted to the Chief
Minister before the issue of orders. Clause (x) of Instruction-
15(1) includes proposals to nominate members of the
Legislative Council under Article 171(3)(e) as a class of case
which is required to be submitted to the Chief Minister. Clause
(vi) of Instruction- 15(2) provides that the cases relating to the
nomination of members to either House of the State Legislature
shall be submitted by the Chief Minister to the Governor before
the issue of orders. Instruction-16 is relevant for the purpose
of a decision in the present case and is, therefore, quoted
below:
"16. Where in any case the Governor considers that any
further action should be taken or that action should be
taken otherwise than in accordance with the orders
passed by the Minister-in-charge, the Governor may
require the case to be laid before the Council of Ministers
for consideration whereupon the case shall be so laid:
Provided that the notes, minutes or comments of the
Governor in any such case shall not be brought on the
Secretariat record unless the Governor so directs".
77. Reading Instruction-16, as it is, this Court finds that the
Governor's power to require any case to be laid before the
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Council of Ministers for consideration could arise in twin
situations, such as (i) where in any case, the Governor
considers that any further action (emphasis supplied) should be
taken; or (ii) where action should be taken otherwise than in
accordance with the orders passed by the Minister-in-charge.
78. Having regard to such provision in the Instructions, which
are part of the RoB, there could be and there is no hesitation
for this Court to hold that the Governor does have a power,
while a case is under his consideration, to require that such
case be laid before the Council of Ministers for consideration for
further action, whereupon the case shall be so laid. It can never
be and hence was not urged that while considering names
recommended by the Council of Ministers for nomination to the
Legislative Assembly, such as the one under consideration, no
application of mind by the Governor, to ascertain whether the
recommendations are within the bounds of the Constitution, is
required. Should upon such application of mind the Governor
considers it proper to accept the advice of such Council, he may
proceed to make the nomination. If not, the Governor may in
his discretion return the recommendations for further action by
Judgment-PIL(L)-10300.2021
the Council of Ministers in terms of whatever observation is
made by the Governor or otherwise.
79. The above view taken by this Court is in accord with the
Bench decision of the Allahabad High Court in K.K. Tripathi
(supra), which must have been arrived at considering the Rules
of Business of the Uttar Pradesh Government. However, this
Court is in respectful disagreement with the Bench decision of
the same High Court in Ranjana Agnihotri (supra) which did
not notice its earlier decision in K.K. Tripathi (supra) and
travelled beyond to hold that it is entirely within the discretion
of the Governor to nominate members to the Legislative
Council.
80. Reliance placed by Mr. Chinoy on Biman Chandra Bose
(supra) is not quite relevant having regard to the nature of
challenge there, although this Court records that the decision
is apt for the questions it answered. V. Venkateswar Rao
(supra) involved a similar challenge in Biman Chandra Bose
(supra) and the Division Bench in reaching its conclusions
followed the law laid down by the Calcutta High Court. Also,
this Court does not consider reference made by Mr. Chinoy in
Judgment-PIL(L)-10300.2021
his rejoinder to the proviso to clause (1) of Article 74, for
persuading this Court to take the view that the Governor has
no such similar power as conferred on the President, to be well
conceived. Such a power to request for consideration for further
action by the Council of Ministers flows from Instruction-16.
81. The decision in B.R. Kapur (supra) arose out of a
completely different fact situation. The Constitution Bench of
the Supreme Court held that when a non-legislator is appointed
as a Chief Minister, he must possess the requisite qualifications
under Article 173 and must not suffer any of the
disqualifications under Article 191; and if a request is made for
such a person, who is not qualified, to be appointed as the Chief
Minister, the Governor would be within his authority to refuse
such request. This decision, therefore, is not material on facts
and in the circumstances.
82. Having answered the question under consideration, what
this Court is left to adjudicate is whether, the advice given by
the Council of Ministers is in exercise of executive power and
also whether, in the absence of any time limit indicated in any
Constitutional provision [as contended by Mr. Singh], the
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Governor can maintain silence despite the fact that more than
eight months have passed since receipt of the letter of the Chief
Minister dated November 6, 2021.
83. The contention of Mr. Singh that forwarding of
recommendations by the Council of Ministers to the Governor
by way of advice is not within the executive functions, has failed
to impress. In Ram Jawaya Kapur vs. State of Punjab,
reported in AIR 1955 SC 549, Hon'ble B.K. Mukherjea, CJ. (as
His Lordship then was) speaking for the Constitution Bench
ruled that it may not be possible to frame an exhaustive
definition of what executive function means and implies, but
ordinarily the executive power connotes the residue of
Governmental functions that remain after legislative and
judicial functions are taken away. In view of such authoritative
pronouncement, this Court is left to wonder on what basis could
advice tendered by the Council of Ministers in recommending
names for nomination to the Legislative Council, which is
neither a legislative nor a judicial function, would not be one
made in exercise of executive power.
Judgment-PIL(L)-10300.2021
84. The other contention of Mr. Singh now falls for
consideration. Does absence of a time limit within which a
Constitutional authority/functionary is required to discharge its
obligation or perform its duty, clothe such authority/functionary
to maintain silence for months together attracting a charge of
abdication? The answer cannot but be in the negative. One
finds no time limit in the Constitution for high
authorities/functionaries to act, or consequences in default
thereof being provided, obviously because at or about the time
the Constitution was framed and enforced, it might have been
unimaginable for its founding fathers that an action/decision,
which in terms of the Constitutional scheme has to be taken
promptly or at least within a reasonable time, would be
withheld, and thereby an important issue left to pend for
months together. Although the founding fathers were
gentlemen of character and vision and had dreamt of
development, progress and upliftment of society based on the
high and lofty ideals engrafted in the Constitution, 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 and
Judgment-PIL(L)-10300.2021
interest of the public, in the immediate future, may not have
been visualized or thought of. It is rather painful for this Court
to fathom a contention of the nature that has been raised,
based on absence of a time limit. No wonder, Nabam Rebia
(supra) reinforces the position in law that no one can act as a
super-constitutional authority. It would not behove the dignity,
prestige and majesty of the office of a Constitutional
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.
85. The recommendations made by the Council of Ministers
have become eight months old by the time this Court
commenced hearing of this petition. If the saying that
everything happens for a reason is to be believed, this Court
Judgment-PIL(L)-10300.2021
ought to assume that there was/were genuine reason(s) for the
Governor not to convey his decision earlier, whatever be the
nature thereof. However, it is time that the impasse is resolved.
It is mature, sensible and responsible governance, both at the
Centre as well as in the States, that the people look up to.
Should there be any misunderstanding or miscommunication
between two Constitutional authorities/functionaries, right
steps in the correct direction ought to follow to obviate the
same. If there be minor differences of opinion, the same ought
to be resolved in such manner as deemed fit and appropriate
including, inter alia, a discussion between the Governor and the
Chief Minister in the guiding spirit of the Constitution.
Indeed, if there are major differences, the same have to be
made known for ironing out such differences. Given the stand
of the State Government in the present case that a response
from the Governor is awaited, conveying the desire of the
Governor that further action ought to be taken, as envisaged in
Instruction-16 of the RoB, could be one of the available options
since the RoB binds both the Governor and the Government.
Doubtless, the seats of the members in the Legislative Council
who are required to be nominated by the Governor cannot be
Judgment-PIL(L)-10300.2021
kept vacant indefinitely without there being a justifiable cause
and much to the detriment of legislative functions. It is in such
circumstances that this Court is of the clear view that the duty
of the Governor to speak and to let the Chief Minister know his
(the Governor's) reservations about the recommendees, if at
all, within a reasonable time has to be read in section 10(2)(c)
of the 1950 Act read with clauses (3)(e) and (5) of Article 171
of the Constitution, or else the legislative intent would stand
defeated. What would be a 'reasonable time', however, must
depend on the facts of each case. This is the law laid down in
K.B. Nagur (supra). In such an important matter as this,
where the nomination is pending for eight months, which is a
sufficiently long period, it seems to be beyond 'reasonable time'
but this Court would infer that the Governor must have taken
such time to complete necessary enquiries about the
recommendees and has reached a conclusion one way or the
other.
CONCLUSION:
86. This Court, therefore, concludes the judgment by making
a public law declaration that the obligation, which the
Judgment-PIL(L)-10300.2021
Constitution vests on the Governor to either accept or return
the recommendations as made by the Council of Ministers
forming part of advice, has to be discharged within a reasonable
time. Eight months, on facts, seems to be beyond reasonable
time. This Court, having regard to the gravity of the issue
involved and the necessity to fill up the vacant seats of
members expeditiously as well as to sub-serve the aims set by
the Constitution, would consider it eminently desirable if the
obligation, in the present case, is duly discharged without
undue delay.
87. Of course, the Governor is not answerable to the Court in
view of Article 361 of the Constitution and no direction can issue
to the Governor; hence, the petitioner has not joined the
Secretary of the Governor as a party despite liberty granted by
an earlier order of this Court. Before parting, this Court
expresses hope and trust that things will be set right at an early
date. If indeed, during the pendency of this writ petition, the
Governor has acted on the advice of the Council of Ministers, in
whatever way it was thought appropriate by him, that would
take care of the petitioner's concern completely.
Judgment-PIL(L)-10300.2021
88. The Public Interest Litigation is, accordingly, disposed
of with no orders as to costs.
SALUNKE
JV
Digitally signed
by SALUNKE J V
Date: 2021.08.13
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
20:31:49 +0530
