Point of Law: Election - Powers and role of Governor to make nomination - Where 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 Governor must have taken such time to complete necessary enquiries about recommendees and has reached a conclusion one way or other.

JUDGMENT :

Dipankar Datta, J.

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 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:

“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.

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 M