Cabinet’s advice on Uddhav's nomination to Legislative Council binding on Governor: experts

He can seek clarification if there is acceptable material against a decision, says Justice Sathasivam

April 30, 2020 05:36 am | Updated 12:14 pm IST - NEW DELHI

 Uddhav Thackeray has to be nominated to the Upper House before May 28.

Uddhav Thackeray has to be nominated to the Upper House before May 28.

Former Kerala Governor Justice (retired) P. Sathasivam told The Hindu that a Governor is “normally” bound by a State Cabinet’s recommendation to nominate a person to the Legislative Council, unless the nominee is found ineligible under the law.

Justice Sathasivam, a former Chief Justice of India, was reacting to the silence from Maharashtra Governor Bhagat Singh Koshyari on the State Cabinet’s recommendation to nominate Chief Minister Uddhav Thackeray as a Member of the Legislative Council.

Also read: Uddhav speaks to Modi on MLC nomination

“The Constitution says the Governor has to normally act on the aid and advice of the Council of Ministers, but if the Governor has some acceptable material against that decision, he can seek clarification instead of rejecting the nomination. He can ask the Cabinet to elaborate or give more details, etc, on the nominee. If the Cabinet reiterates, then the Governor is bound by the Cabinet decision,” Justice Sathasivam said in a phone interaction on March 29.

However, he said, “If the nominee is not eligible or if the nomination of the Cabinet is contrary to any statutes, law or rules, then the Governor is not bound by the Cabinet’s reiteration”.

“The State Cabinet has to also keep in mind that its nomination of a person is in accordance with law. If the Cabinet says three plus three is seven, the Governor need not accept it... In such cases of stalemate between the Cabinet and the Governor, the individual nominee can approach the court. He can make both the State government and the Governor parties,” Justice Sathasivam said.

Sub-clause (e) of clause (3) of Article 171 deals with the Governor’s power to nominate members to the Legislative Councils. Clause (5) of Article 171 says nominations made shall “consist” of persons with special knowledge and experience in matters of literature, science, art, co-operative movement and social service.

Rajya Sabha Member and senior advocate K.T.S. Tulsi said the Governor’s every official action should be on the advice of the Cabinet. The Governor is only a titular head and not a “third chamber of legislature or executive”, Mr. Tulsi said.

“The nomination is regulated by Article 171(5). Here, the Cabinet has already decided that he (Thackeray) is qualified for nomination in the fields of co-operative movement and social service... The Governor is bound by the decision of the Cabinet, he is just a titular head and not a third chamber of legislature or the executive,” Mr. Tulsi said.

“Constitution does not give the Governor the power to nominate anyone on his own. He has no such special constitutional power. He cannot decide whether a person is qualified to be nominated or not, he is not a returning officer,” former Solicitor General of India Mohan Parasaran said.

Senior Supreme Court advocate K.V. Vishwanathan agreed with Justice Sathasivam that a Governor could revert to the Cabinet if he found a disqualification in the nominee, like a conviction.

“But if the Cabinet reiterates the name, he (Governor) has to sign. Failing to do so will be abdication of a constitutional duty. If he does not want to sign, a Governor’s only option is to resign,” Mr. Vishwanathan said.

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