Mumbai: Bombay high court on Thursday dismissed a public interest litigation (PIL) challenging former Maharashtra governor B S Koshyari‘s decision to withdraw the names suggested by the Uddhav Thackeray-led Maha Vikas Aghadi (MVA) govt to fill 12 Member of Legislative Council (MLC) posts from the governor’s quota.
Last Oct, the HC concluded the hearing and reserved its judgment on the PIL filed by Shiv Sena (UBT)’s former Kolhapur corporator Sunil Modi. The PIL, argued by advocate Sangram Bhosle, sought the quashing of an “impermissible” decision by Koshyari.
A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Amit Borkar, pronouncing its decision, said the PIL is dismissed for reasons discussed in the judgment — it was not uploaded till the time of going to press.
Article 171 (5) of the Constitution requires nominated MLCs to comprise persons from specialised backgrounds and experiences, be it science, sports, art, and culture.
On Sept 5, 2022, Koshyari approved the Eknath Shinde-led Mahayuti govt’s recommendation to withdraw and return the 12 MLC names suggested by the MVA govt on Nov 7, 2020. Modi, in his PIL, claimed the governor’s office had, in an “unconstitutional” exercise, refused to act for an inordinately long period of 22 months on the MVA govt’s nominations. Koshyari should not have acted as a “rubber stamp” and should have exercised his own discretion, rather than letting the posts remain vacant, Modi argued.
Seeking dismissal of the PIL, advocate general Birendra Saraf, for the state, argued that it lacked any legal basis and was “infructuous” as the governor cannot act on the list which is already withdrawn by the subsequent state govt. Saraf further said that the governor, while appointing nominated MLCs, acts on the advice of the council of ministers, and if the cabinet withdraws the nominations, the governor could not have acted on a withdrawn list. The state, in its affidavit, also said it was open for the council of ministers and the chief minister to withdraw the list of 12 MLC nominations till the governor accepts the names. “The petitioner’s allegation that there was a delay on the part of the then governor in taking a decision does not in any manner disentitle the council of ministers to exercise its rights to withdraw the recommendations earlier made,” stated the affidavit.
Modi also questioned a “pocket veto” by the Koshyari that ended with the withdrawal of the 12 MLC nominations. His plea said the decision was a “defeat of democracy”. A mere change in govt should not result in a change in decisions, his lawyer argued. But Saraf said govt has the power to withdraw the names before they are accepted. Merely a change in govt doesn’t dilute the right to withdraw a recommendation, the advocate general pointed out.