Walk to the Legislative Council through the Governor’s Woods: Answering the Legal Questions

by Mr. Varad Kolhe, Batch of 2020, ILS Law College, Pune.


After an intense and much awaited end to political suspense over government formation in Maharashtra, when Uddhav Thackeray took oath of the office of Chief Minister of Maharashtra on 28th November, 2019, he stormed into a litany of seven previous heads of the state, who were neither MLAs or MLCs on the date of taking oath as the Chief Minister of Maharashtra.


Not much later, Thackeray’s tenure at governance was greeted with the daunting task of battling the almost unstoppable spread of Covid-19 disease in Maharashtra. While many, including his critics showered praise on his composed modus operandi of damage control; the impact of the pandemic also left sword hanging over his uninterrupted continuance as the Chief Minister of Maharashtra.


Although the fire has now been extinguished, it raised a flurry of legal questions. I seek to address these questions, which have stirred debate in the past few days.


A Layman’s Ponderance: How does one become a Minister without being elected?

A layman may ask: Can an individual who never contested, let alone secured a win in the elections to the Legislature of a state be appointed as a Minister? The Constitution will direct us to Cl. (1B) of Art. 164 and Art. 173 dealing with provisions as to ministers. To be a minister: (a) one has to be a member of either house of the Legislature (satisfy the criteria of citizenship, age and eligibility criteria in Art. 173) and (b) not be disqualified under paragraph 2 of the Tenth Schedule to be appointed as a minister (Art. 164 (1B)). However, any person belonging to any political party who is not a member of any house of the Legislature may also be appointed as a minister. Needless to say, this appointment can sustain only if he satisfies the caveat in Art. 164(4) i.e. he has to become a member of either house of the Legislature within six months from the date of the oath of his office, failing which he shall cease to be a Minister.


Threadbare Provision: Nomination to the Legislative Council

Art. 171(5) of the Constitution, reads:

(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.


Weighing the Ministers’ Recommendation and Governor’s Discretion

The exposition of the schism of Art. 163 (Council to aid and advise the Governor) by the Supreme Court in State of Gujarat v. Justice R.A. Mehta (following the principle laid down in M.P. Special Police Establishment v. State of M.P., see also G. Balchandran v. State of Kerala) answers this question in two parts: the Governor is bound by the aid and advice of the Council of Ministers except in so far: (a) he acts as ‘persona designata’ under a particular statute or (b) when he acts in his own discretion under the exceptional situations carved out by the Constitution itself. To name a few, the exceptional situations where the Governor is required to act in his own discretion are specified in Arts. 239(2), 371A (2)(b), (d) and (f); and para 9(2) of the 6th Schedule of the Constitution. These may also include special responsibilities of the Governor under Arts. 371(2); 371A(1); 371C. In the landmark Samsher (at paras 16, 20, 33, and 138; see also Azad v. State of Assam, AIR 1958 AP 619 (653)) judgment, it was made clear that except in cases where the Governor “is required to act in his discretion”, he is to act on the advice of Ministers. More particularly with reference to nominations under Art. 171, the Calcutta High Court in Dr. Biman Chandra Bose v. Dr. H C Mookherjee observed:

Art. 163 makes it quite clear that except in cases the Governor is required to act in his discretion, he is to act on the advice of his Ministers and so it must be presumed that in making the impugned nominations he must have acted on the advice of his Council of Ministers. The Court is entitled to presume the regularity of official acts.

More recently in 2012, the Andhra Pradesh High Court further demarcated the scope of governor’s decision making role in Article 171, completely eliminating the role of personal satisfaction of the governor and ruling out an independent decision on the part of the governor, contrary to the advice tendered by the Council of Ministers:


The role of the Governor under Article 171(3)(e) is limited except to the extent that he has to satisfy himself as to whether the constitutional provisions relating to such nomination such as eligibility etc. have been complied with or any disqualification under Article 191 is attracted and the personal satisfaction of the governor has no role to play. In the absence of any discretion given to the Governor under Article 171, the Governor is, therefore, bound by the advice tendered by the Council of Ministers in the matter of nomination of members to the Legislative Council under Article 171 of the Constitution. Under the Scheme of the Constitution, the Governor being the executive head of the state was the authority to nominate the members to the Legislative Council. Though he acts in accordance with the advice tendered by the Council of Ministers, nomination has to be made by the Governor as mandated by the Constitution and not by any authority. Under Article 171 of the Constitution, no discretion is given to the Governor to act in his own discretion independently. In our opinion, Article 171 of the Constitution gave no discretion to the Governor to act independently contrary to the advice tendered by the Council of Ministers.

Thus, it would be fair to say that the recommendation of the Council of Ministers is indeed binding on the Governor.


The Test of Purpose and Qualifications under Art. 171(5): Living Tree Constitutionalism

Many have argued that, that is the legislative intent behind Art. 171(5) is to provide impetus to rope in resourceful talents with special knowledge who do not wish to or do not have the time to contest elections. How then, is Thackeray’s special knowledge (some also argued over the magnitude of its specialty), or practical experience as a photographer and/or as an author, of any use to the state of Maharashtra? The governor should instead rope in a disease expert from the U.S. or an economist from Stanford!


It is an unsaid rule that provisions of the constitution are to be given a broad and liberal interpretation. In that vein, the threshold under Art. 171(5) is not a tenuous climb. I say this because:


Adopting a textualist approach, the criterion of ‘social service’ in Art. 171(5) can be stretched to its elastic point. The judgment of the Allahabad High Court in Har Sharan Varma v. Chandra Bhan Gupta showed us the elasticity of Art. 171(5). Faced with the challenge to the nomination of Mr. Gupta to the Legislative council and his appointment as CM, the court made guiding observations in reference to the term ‘social service’. It held that since Mr. Gupta had taken an active part in the politics and the governance of the State for several years, the possibility of him not meeting the qualifications criteria in Art. 171(5) was ruled out. In terms of purpose, the court observed that Art. 171(5) cannot be used as a catalyst to facilitate backdoor appointments meant to serve as political pin-pose. Would it be right to say that Thackeray’s appointment is a political pin-pose? I believe no because: assuming that the textualist approach holds no water, I then turn to the theory of living tree constitutionalism. Our constitution, being a living and organic document, its interpretation should transcend and change as times change and seasons unfold. This theory of living tree constitutionalism requires constitutional provisions to adapt and adjust to impending circumstances and scenarios. While there may be contrary opinions, discerning majority public opinion reflects that at the moment, Maharashtra needed a composed Thackeray on the battlefield to fight the war from the front. Dethroning him when push has come to shove would have created an unwanted void of political trust and leadership in the state. While his deputy may have taken over, it is uncertain whether all ministers, members of the Legislature and leaders from the opposition may have imposed and extended the same faith, trust and support as Mr. Thackeray has garnered and sustained.


Scope of Challenge to the Governor’s nomination: Can the Court Rain on the Parade?

In Re Ramamoorthi, it was held that the function of nomination of the Governor under Art. 171(5) is not justiciable and no court can interfere with it in any manner. It was further clarified that the nomination of a member by the Governor does not infringe the personal right of any elected member of the Legislative Assembly even in an indirect manner so as to entitle him to sustain an application for the issue of a writ of certiorari to quash the nomination made by the Governor. In the same year in 1952, the Calcutta High Court in Biman Mukherjee (supra) rejected a challenge to the nomination of C. Rajgopalachari to the Madras Legislative Council on the ground that the petitioner had no personal right which can be said to have been infringed even in an indirect manner by nomination, thus also reasoning that a writ of quo warranto does not lie against a nominated person so long as the notification making the nomination stands. The court provided a three-pronged answer as to the scope of court’s inquiry into the governor’s nomination:

(1) under Article 163, except in cases where the Governor is required to act in his discretion, he is to act on the advice of the Council of Ministers and so it must be presumed that in making the nomination in question, he must have received the advice of the Council of Ministers; (2) by reason of Article 163(3), the advice tendered by the ministers to the Governor cannot be inquired into by court; (3) by virtue of Article 361, the validity or invalidity of the nomination could not be inquired by court as this Article gives a complete protection to the Governor against court action. The above petition was filed against the Governor personally.

However, this blanket protection under (3) is not a possibility now since the court, after S.R. Bommai’s case may not look into the advice of the council of ministers, but can very much ascertain fulfillment of constitutional conditions.


In Vidyasagar v. Krishna Ballabha, nominations were challenged on the ground that these had been made by the Chief Minister without referring the matter to the Governor. The Patna High Court dismissed the challenge reasoning that the court could not go into the question of what advice was tendered to the Governor by the Council of Ministers as long as the order of nomination had been properly authenticated.


In Har Sharan Varma (supra), the Allahabad High Court first drew a distinction between political and legal impropriety, and further also a distinction between illegality and impropriety holding: