Bombay High Court: Plea requesting a Writ of Mandamus be issued against the Governor of Maharastra; alleges his actions to be Arbitrary

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A petition has been filed in the High Court of Bombay under Article 226 of the Constitution against the Governor of Maharashtra accusing him of partiality towards the political party BJP by unnecessarily delaying the nomination of the Mr Uddhav Thackeray, the present Chief Minister of Maharashtra to the State Legislative Council.

The petition thereby seeks for the High Court to direct the Governor to expeditiously act on the recommendation of the Council of Ministers and nominate Mr Thackeray as a Member of the Legislative Council (MLC).

Facts of the Case

The political turmoil that grasped Maharashtra from October to November 2019 saw four major political parties- the Bhartiya Janta Party (BJP), Shiv Sena, Indian National Congress (INC) and the Nationalist Congress Party (NCP) battling to secure a majority in the 288 seats of the legislative assembly.

BJP and Shiv Sena had previously formed a pre-poll alliance and secured 105 and 56 seats respectively. The INC won 44 seats while the NCP bagged the remaining 54.

On 10th November, the BJP expressed its inability to prove a majority in the house following which the Governor invited the Sena and gave them 24 hours to do the same. However, the Sena requested 3 days to submit the letters of support which was denied. The Shiv Sena challenged the Governor’s decision in the Hon’ble Supreme Court following which President’s rule was imposed in Maharashtra on 12th November 2019.

In a bizarre turn of events thereafter, on 23rd November 2019, the President’s rule was lifted and Shri. Devendra Fadnavis of BJP was sworn in as the Chief Minister with the allegedly defected Ajit Pawar of NCP as the deputy Chief Minister.

Their swearing-in was challenged by the Maharashtra Vikas Aghadi which was a post-poll alliance between INC, NCP and the Shiv Sena and the Supreme Court ordered a floor test to be conducted within 24 hours. Unable to prove a majority, Shri. Devendra Fadnavis resigned and ultimately Mr Thackeray was sworn in as the Chief Minister of Maharashtra.

The fact, however, remained that Mr Thackeray was not a member of either of the houses of the State Legislature. Vide Article 164 (4) of the Constitution, a minister who is not a member of the legislature of the State consecutively for six months, shall cease to be a minister at the end of it.

In lieu of the above, Mr Thackeray will cease to be the Chief Minister on the expiration of six months of his swearing-in the office of the Chief Minister which happens to be on 27th May 2020. Due to the current Covid19 outbreak, the Election Commission was unable to hold the election for the 9 remaining seats to the Legislative Council and the same has been postponed indefinitely. In light of all the above, the only remedy left with Mr Thackeray is to get nominated to the State Legislative Council vide Article 175(5) which empowers the Governor to nominate 12 members having special knowledge or practical experience in respect of matters such a literature, science, art, co-operative movement and social service.

The Council of Ministers had already recommended Mr Thackeray’s name for nomination on 9th April 2020 and did the same again on 27th April 2020 detailing their reasons behind the recommendation. The same however has been met with no response by Governor Bhagat Singh Koshyari and has been withheld by him for about 3 weeks now.

Arguments by the Petitioner

The petition stated that vide Article 163 of the Constitution, the Governor must function according to the aid and advice of the Council of Ministers. It further went on to say that the nomination of members to the State Legislative Council is one such matter where it has been held by the Hon’ble Supreme Court that the Governor is bound to follow the advice of the Council of Ministers.

It further elaborated the relentless efforts of Mr Thackeray in the field of social welfare which included raising funds for drought relief and wildlife conservation, relief funds, ambulance services as well as his artistic achievements including his tenure as the editor of the Marathi newspaper ‘Samna’ and his workbooks on professional photography.

Thereby, it stated that the recommendation for his nomination to the Legislative Council is utterly justified and free from any legal infirmities.

The petitioner alleged that the present Governor Bhagat Singh Koshyari had been long associated with BJP and still owed his allegiance to the party. He even after confirming the legality of the recommendation from the Advocate General is voluntarily withholding any action to embarrass and pressure the incumbent Chief Minister, hence allowing the BJP to defect members of the ruling party. It maintained that the Governor through his inaction for about 20 days is providing scope for horse-trading and is using the situation to destabilise the incumbent government for political gains and in essence, his action suffered from arbitrariness violating Article 14.

The petitioner asserted that any further delay in the nomination of Mr Thackeray will be detrimental to the political stability of the State. It affirmed that Mr Thackeray may lose control over the bureaucracy and administrative set-up of the State especially at the time of a world-wide pandemic hence he must be nominated immediately to end any uncertainty in the State. Thereby, the petitioner who favoured good governance and welfare administration iterated in Article 38 of the Constitution and it is for the same reason he has prayed for the Court to issue a writ of mandamus directing the Governor of Maharashtra to promptly decide on the recommendation made by the Council of Ministers.

Current Status

The Bombay High Court is likely to hear the plea in May 2020. Meanwhile, Governor Koshyari has written to the Election Commission requesting them to announce the results of the MLC elections for the nine vacant seats at the earliest.


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