Dismissed

V.Venkateswar Rao v. The Government of Andhra pradesh

Telangana HC5 Oct 2012WP/32542/2011

Case brief

AI extract

What is this about?

The Court dismissed a Public Interest Litigation challenging the Governor's nomination of five persons to the Andhra Pradesh Legislative Council. Relying on Articles 163 and 361 of the Constitution, the Court held that nominations made on the advice of the Council of Ministers are not justiciable and the Governor has no discretion to act independently.

What did the court decide?

The impugned notification declaring the nominations arbitrary and illegal was dismissed with no order as to costs.

V.Venkateswar Rao Vs The Government of Andhra pradesh — Election Law | Telangana HC (2012)

¶1

THE HON’BLE THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR

¶2

Writ Petition No.32542 of 2011

¶3

DATED:05.10.2012

¶4

Between: V. Venkateswar Rao (V.V.Rao) … Petitioner

¶5

And

¶6

The Government of Andhra Pradesh, General Administration Department, Represented by its Principal Secretary, Secretariat, Hyderabad and seven others … Respondents

¶7

THE HON’BLE ACTING CHIEF JUSTICE SHRI PINAKI CHANDRA GHOSE AND THE HON’BLE SHRI JUSTICE VILAS V. AFZULPURKAR

¶8

Writ Petition No.32542 of 2011

¶9

JUDGMENT: (Per the Hon’ble the Acting Chief Justice)

¶10

*******

¶11

1. In this Writ Petition filed as Public Interest Litigation, the petitioner, who claims to be Convener of Forum for Social Audit Council on Information Right and actively campaigning on issues of public importance challenges the validity of the Notification issued by the State Government in G.O.Ms.No.280, General Administration (Elecs.F) Department dated 28.5.2011, whereby, the Governor of the State, in exercise of the powers conferred by sub-clause (e) of Clause (3) of Article 171 of the Constitution of India, read with Clause (5) thereof, has nominated respondents 4 to 8 as members to the Andhra Pradesh Legislative Council, and, seeks a writ of mandamus declaring the nominations of respondents 4 to 8 as Members of A.P. legislative Council as arbitrary, illegal, mala fide, colourable exercise of power, unconstitutional and ultra vires Article 171(3)(e) and (5) of the Constitution of India and to set aside the same.

¶12

2. By the afore-stated notification, while 1. Sri A. Chakrapani, Kurnool, Ex-Chairman, A.P. Legislative Council, 2. Sri D. Rajeswara Rao, Ex-MLC, Nizamabad District, 3. Sri R. Reddeppa Reddy, Ex-MLC, Chittoor District and 4. Sri Farooq Hussain, Medak District were appointed as members to the Legislative Council in place of four members retired on 29.3.2011, Smt. Angoori Laxmi Shiva Kumari, East Godavari District, was appointed as member of the Legislative Council in place of Dr. K. Rajyalakshmi who expired on 2.3.2011 and whose term expires by 29.3.2011.

¶13

3. The Government of Andhra Pradesh, Andhra Pradesh Legislative Council, Sri N. Kiran Kumar Reddy, and Chief Minister are impleaded as Respondents 1 to 3 respectively and the five persons nominated as members to the Legislative Council by the impugned notification are

¶14

impleaded as respondents 4 to 8 respectively.

¶15

4. The case of the petitioner is that under Clause (5) of Article 171 of the Constitution of India, the members to be nominated by the Governor under sub-clause (e) of Clause (3) of Article 171 shall consist of persons having special knowledge or practical experience in respect of such matters, namely, Literature, Science, Art, Co-operative Movement and Social Service, but the Hon’ble Governor in total disregard of the said provision has nominated respondents 4 to 8 as members of the Council. The information obtained by him under the Right to Information Act revealed that the respondents 4 to 8 do not possess any special knowledge or practical experience in Literature, Science, Art, Co-operative Movement and Social Service or any of them, thus, they are not qualified or eligible for nomination to the Legislative Council under Article 171(3)(e) and Clause (5) of the Constitution of India.

¶16

5. The Council of Ministers in its meeting held on 22^nd March, 2011 passed a resolution authorizing the Chief Minister to recommend suitable names to Hon’ble Governor and thereafter on 28.3.2011 the Chief Minister proposed the names of the respondents 4 to 8 for nomination to the Legislative Council and the Hon’ble Governor approved the same on the same date and thereafter the impugned notification was issued. Petitioner states that the entire file including the note file relating to the nomination of respondents 4 to 8 to Andhra Pradesh Legislative Council by the Hon’ble Governor under Article 171(3)(e) was inspected under Right to Information Act, 2005 and copies of the relevant documents obtained thereof does not disclose the basis for selection and recommendation of names of respondents 4 to 8 by the 3^rd respondent and their nomination by the Hon’ble Governor from among several applicants. The basis for nomination of the respondent Nos.4 to 8 to the Legislative Council under Clause (5) is without any material before the Government. The provision relating to the nomination to the Legislative Council by the Hon’ble Governor is meant to ensure that the persons who are having special knowledge or practical experience in the fields mentioned in clause (5) of Article 171 are appointed to the Legislative Council to ensure the protection of interests of the persons belonging to such fields. It is further averred in the petition that the power to nominate to the Legislative Council for the seats reserved to certain fields is vested in the Governor to ensure that the nominations for the purpose for which it is intended is not defeated and the political considerations does not play a role in the nomination of members.

¶17

6. The 1^st respondent – Ex-Officio Principal Secretary to Government, General Administration (Elections) Department filed a counter-affidavit

¶18

stating that all the five persons whose names have been recommended to his Excellency the Governor to be nominated as members of the Legislative Council are persons who have special knowledge and practical experience in social service and cooperative movement. His Excellency the Governor had acted on the advice of the Council of Ministers and nominated respondents 4 to 8 as members to the Legislative Council. In view of the fact that Respondents 4 to 8 have special knowledge in tune with Clause 5 of Article 171 of the Constitution of India, their names were recommended by the Hon’ble Chief Minister which has the approval of the Council of Ministers vide resolution dated 22.3.2011. As required under Article 163 of the Constitution, the Governor has acted upon the advice of the Council of Ministers and made the nominations, therefore, there is no illegality or irregularity in issuing the impugned notification. The notification impugned is in accordance with the mandate of the Constitution and no public interest is involved to intervene in the matter.

¶19

7. Sri Mohan Rao, learned counsel for the petitioner submitted that Article 171(3) of the Constitution of India is required to be exercised by the Hon’ble Governor independent of the recommendation of the State Cabinet. The power to nominate members to the Legislative Council by its very nature cannot be surrendered to the Cabinet and the same is required to be exercised independently by the Hon’ble Governor by exercising his own discretion. The nomination made by the Hon’ble Governor based on the advice of the 3^rd respondent is arbitrary and ultra vires the provisions of Article 171 of the Constitution. Learned counsel further submitted that there should be enough material and application of mind before a person’s case can be considered for nomination to the Legislative Council. There is no examination of the eligibility/suitability of the persons whose names were recommended by the 3^rd respondent and there is no due process of law exercised in the matter, therefore, the entire process is hit by the wednesbury’s principle of unreasonableness. Before nominating respondents 4 to 8 to the Legislative Council it is not stated or indicated against each of them the fields or category under which they are nominated. Sri Mohan Rao next submitted that respondents 4 to 8 were nominated not on the advice of Council of Ministers but on the advice of the 3^rd respondent alone and the same is not valid and legal; therefore, the nomination of respondents 4 to 8 by the Hon’ble Governor without the approval of the Council of Ministers is illegal. The collective duty and responsibility cast on the cabinet under Article 163 of the Constitution of India cannot be delegated to any person. The authorization given by the

¶20

Council of Ministers on 22.3.2011 to the 3^rd respondent is contrary to the scheme envisaged under the Constitution of India.

¶21

Sri Mohan Rao then submitted that there is no material whatsoever in the record to come to any conclusion as to the suitability, desirability and eligibility of the persons whose names were recommended for nomination by the Hon’ble Governor. There is no place for politics for nomination under clause (5) of Article 171 of the Constitution and power to nominate the members to the Legislative Council under the said clause must be exercised for the purpose for which it is provided. The names of Respondents 4 to 8 were considered for nomination as they belong to the Congress party. Therefore, the recommendation of the names of respondents 4 to 8 is a colorable exercise of power by the 3^rd respondent to further the narrow political interests of his party. The nomination of respondents 4 to 8 made on the recommendation of 3^rd respondent thus is actuated by mala fides, hence, their nominations are liable to be set aside being arbitrary, illegal and ultra vires Article 171(3)(e) and Clause 5 of the Constitution of India.

¶22

In support of his contentions learned counsel has placed reliance on the following decisions:

¶23

1. S.R. CHAUDHURI V. STATE OF PUNJAB AND OTHERS [1]

¶24

2. M.P. SPECIAL POLICE ESTABLISHMENT V. STATE OF MP. AND OTHERS^[2]

¶25

3. PU MYLLAI HLYCHHO AND OTHERS V. STATE OF MIZORAM AND OTHERS^[3] )

¶26

4. RAMESHWAR PRASAD AND OTHERS V. UNION OF INDIA AND ANOTEHR^[4]

¶27

5. S.R. BOMMAI V. UNION OF INDIA^[5]

¶28

6. JAYRAJBHAI JAYANTIBHAI PATEL V. ANILBHAI NATHUBHAI PATEL^[6]

¶29

7. CENTRE FOR PIL AND ANOTHER V. UNION OF INDIA AND ANOTHER^[7]

¶30

8. MRF LIMITED V. MANOHAR PARRIKAR AND OTHERS^[8]

¶31

9. KATRAGADDA GANGARAM V. STATE OF ANDHRA PRADESH^[9]

¶32

10. BHIMAN CHANDRA BOSE v. GOVERNOR, WEST BENGAL^[10]

¶33

11. HAR SHARAN VARMA V. CHANDRA BHAN GUPTA AND OTHERS^[11]

¶34

12. VIDYASAGAR SINGH V. BALLABHA SAHAY AND OTHERS^[12]

¶35

8. The learned Advocate General submitted that all the five persons whose names have been recommended to the Hon’ble Governor are persons who have special knowledge and practical experience in social service and cooperative movement and as such their nomination cannot be said to be illegal or arbitrary. He further submitted that there is no procedure prescribed for selection of candidates for nominating the Legislative Council under Clause 3(e) of Article 171 of the Constitution of India. The Hon’ble Governor basing on the recommendation of the Council of Ministers has nominated the respondents 4 to 8 to the Legislative Council. The respondents 4 to 8 have got special knowledge in tune with Clause (5) of Article 171 of the Constitution of India. Learned Advocate General further submitted that since the Council of Ministers have authorized the Chief Minister by resolution dated 22.3.2011, the recommendation made by the Chief Ministers is to be construed as a recommendation by the Council of Ministers and not by the Chief Minister alone. Learned Advocate General further submitted that Governor being a constitutional head of the Executive, his powers are to be exercised on the advice of the Council of Ministers and through Ministers or other Officers to whom functions may be allocated according to the Rules of Business made under Article 166(3) of the Constitution of India. He further submitted that Article 163 of the Constitution of India makes it clear that except in cases where the Governor is required to act in his discretion, he has to act on the advice of Ministers as reiterated by the Hon’ble Supreme Court in A. SANJEEVI NAIDU V.

¶36

STATE OF MADRAS^[13] . He also placed reliance on the decision of the Supreme Court in PU MYLLAI HLYCHHO AND OTHERS V. STATE OF MIZORAM AND OTHERS (3 supra) contending that wherever the constitution requires the satisfaction of the Governor to the exercise of any power or function, the satisfaction required by the Constitution is not personal satisfaction of the Governor but the satisfaction in the constitutional sense under the cabinet system of Government. There is nothing in Article 171 that while making the nominations; the Governor shall act in his discretion. Learned Advocate General, therefore, submitted that the Governor has acted upon the advice of the Council of Minister and made the nominations in accordance with the constitutional scheme and as such there is no illegality or irregularity or arbitrariness in issuing the impugned proceedings. He also placed reliance on the decision of the Calcutta High Court in BHIMAN CHANDRA BOSE V. GOVERNOR, WEST BEBNGAL (10 supra) to submit that Governor has to act on advice of Council of Ministers and not in his own discretion and the Governor in the present case has acted on the advice of the Council of Ministers. Learned Advocate General has also placed reliance on the decision of this Court in KATRAGADDA GANGARAM V. STATE OF ANDHRA PRADESH (9 supra) and submitted that this Court in similar circumstances relating to nomination of certain persons as members to the Legislative Council by the Governor has declined to interfere with the nomination made by the Governor to the Legislative Council.

¶37

9. Article 171 of the Constitution of India which deals with composition of the Legislative Councils for the States read as follows: 171. Composition of the Legislative Councils

¶38

(1) The total number of members in the Legislative Council of a State having such a Council shall not exceed one third of the total number of members in the Legislative Assembly of that State: Provided that the total number of members in the Legislative Council of a State shall in no case be less than forty

¶39

(2) Until Parliament by law otherwise provides, the composition of the Legislative Council of a State shall be as provided in clause ( 3 )

¶40

(3) Of the total number of members of the Legislative council of a State

¶41

(a) as nearly as may be, one third shall be elected by electorates consisting of members of municipalities, district boards and such

¶42

other local authorities in the State as Parliament may by law specify;

¶43

(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;

¶44

(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;

¶45

(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;

¶46

(e) the remainder shall be nominated by the Governor in accordance with the provisions of clause ( 5 )

¶47

(4) The members to be elected under sub clauses (a), (b) and (c) of clause ( 3 ) shall be chosen in such territorial constituencies as may be prescribed by or under any law made by Parliament, and the election under the said sub clauses and under sub clause (d) of the said clause shall be held in accordance with the system of proportional representation by means of the single transferable vote.

¶48

(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

¶49

10. The Andhra Pradesh Legislative Council which was abolished in the year 1985 was again created in the year 2007 under A.P. Legislative Council Act, 2005 (Act No.1 of 2006) (for short ‘the Act 2005’). As per Section 3(2) of the Act 2005, the Legislative Council shall consist of 90 seats. The allocation of seats under Section (3)(2) of the said Act read with Article 171 of the Constitution of India for composition of the Andhra Pradesh Legislative Council is as under:

¶50

(a) Local Authorities Constituencies : 31

¶51

(b) Graduate Constituencies : 8

¶52

(c) Teacher’s Constituencies : 8

¶53

(d) Legislative Assembly : 31 (e) To be nominated by the Governor : 12

¶54

Under Section 6 of the Representation of the People Act, 1950 the person to be nominated shall be a citizen of India and not less than 30 years of age. In addition to these requirements, the following prohibitions prescribed in Article 191 of the Constitution will also apply.

¶55

191. Disqualifications for membership.

¶56

(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State.

¶57

(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;

¶58

(b) if he is of unsound mind and stands so declared by a competent court;

¶59

(c) if he is an undischarged insolvent;

¶60

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;

¶61

(e) if he is so disqualified by or under any law made by Parliament Explanation For the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State.

¶62

(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule

¶63

11. A scrutiny of the material placed on record discloses that on the death of Dr.(Smt.) K. Rajyalakshmi, member nominated to the Legislative Council by Governor of Andhra Pradesh, whose term will expire by 29.3.2011, a vacancy had arisen and the same was notified by the Secretary, State Legislature on 3.3.2011. Further the term of four members nominated by the Governor to the Legislative Council would expire by 29.3.2011 which

¶64

includes Dr. A Chakrapani and Sri D. Rajeshwar Rao - respondents 4 and 8 herein who were nominated again by the Governor by the impugned notification. Therefore, a proposal was made by the Chief Electoral Officer & Ex-Officio Principal Secretary to Government, General Administration Department before the Council of Ministers headed by the Chief Minister. The Council of Ministers in its meeting held on 22.3.2011, presided over by the Chief Minister, authorized the Chief Minister to recommend suitable names to Governor. Thereafter a note was circulated to the Hon’ble Chief Minister who proposed the present nominees for the Legislative Council against four regular vacancies and one against the vacancy caused due to demise of Dr. Rajyalakshmi. The Chief Minister approved the note on 28.5.2011 and the same was approved by the Hon’ble Governor on 28.5.2011 and thereafter the impugned notification was issued. 12. Article 171 of the Constitution deals with the constitution of Legislative Council where a State has opted to have such a Council. Sub-clauses (a) to (d) of Clause (3) of Article 171 deals with number of members to be elected from (a) Local Authorities Constituencies, (b) Graduate Constituencies, (c) Teacher’s Constituencies and (d) Legislative Assembly. Sub-clause (e) of Clause 3 of Article 171 provides that the remainder seats shall be nominated by the Governor. We have earlier noted that under Section 3(2) of the Act, 2005, 12 seats are earmarked for nomination by the Governor under sub-clause (e) of Clause (3) of Article 171, which shall be made by the Governor in accordance with the provisions of Clause (5) of Article 171. Sub-Clause (5) of Article 171 provides that 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, namely, Literature, Science, Art, Co-operative Movement and Social Service. From a perusal of Clause (4) of Article 171, it is seen that election of the members to the Legislative Council as contemplated under Clauses (a) to (c) of Clause (3) of Article 171 shall be as per the procedure prescribed by or order any law made by Parliament, and the elections under sub-clause (d) of the said clause shall be held in accordance with the system of proportional representation by means of the single transferable vote. However, as can be seen from Clause (5) of Article 171, no procedure is prescribed for selection of candidates for nomination to the Legislative Council by the Governor. Another important aspect to be noted is that nowhere in Article 171 discretion is given to the Governor for the nomination of members to the Legislative Council. Sub-clause (e) of Clause (3) of Article 171 only mentions that the remainder seats shall be nominated by the Governor in accordance with the provisions of Clause (5).

¶65

13. In a Parliamentary democracy where the Government is being run under a cabinet system of governance, Governor has to exercise his power or discharge the functions mandated under the Constitution in accordance with the advice by the Council of Ministers with the Chief Minister as the Head. At this stage, it is useful to quote Article 163 of the Constitution, which reads thus:

¶66

“163. Council of Ministers to aid and advise Governor

¶67

(1) There shall be a council of Ministers with the chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion.

¶68

(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.

¶69

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.

¶70

14. From sub-clause (1) Clause (1) of Article 163 it is clear that the Governor has to act in accordance with the aid and advice of the Council of Ministers except in cases where under the Constitution the Governor is required to exercise his functions or any of them in his discretion. Therefore, where a constitutional provision has left no discretion to the Governor, then the Governor is bound by the advice tendered by the Council of Ministers. Article 171 of the Constitution has left no discretion to the Governor in the matter of nomination of members to the Legislative Council. 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

¶71

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. Therefore, the contention of the learned counsel for the petitioner that under Article 171 of the Constitution the Governor has to act independently has no merit. Consequently, the question of surrender of power by the Governor also does not arise. Further, Article 361 affords immunity to the decisions taken by the Governor and he shall not be answerable to any Court for the exercise and performance of the powers and duties of his Office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.

¶72

15. As early in 1952, the High Court of Calcutta had an occasion to deal with the provisions of Article 171(3)(e) and Clause (5) thereof in BHIMAN CHANDRA BOSE V.GOVERNOR, WEST BENGAL (10 supra) where a similar challenge was made by a person who was not considered for nomination by the Governor and nominating certain other persons as members of the State Legislative Council. A learned single Judge of the Calcutta High Court at para 6 held thus:

¶73

“It appears however from Art. 163 that except in matters the Governor is required to act in his discretion, he is to act on the advice of the council of ministers, and the only provision which has been pointed out by the learned Advocate General which requires the Governor to act in his discretion, is in Sch.VI of the Constitution being Item 9 thereof relating to licenses or leases for the purpose of prospecting for, or extraction of minerals. It may be pointed out that Art.171 does not state that in making nominations the Governor is bound to act in his discretion. This expression “in his discretion” and another expression ‘in his individual judgment” are expressions which were freely used in the Government of India Act, 1935. .. . . . . .Unless a particular article expressly so provides, an obligation to act in his discretion cannot be imposed upon the Governor by mere implication. There is nothing to show that no rules as contemplated by Art.163(3) (sic) have been framed by the Governor. 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.”

¶74

Referring to Article 361, at para 7 it was held:

¶75

“…Consequently, the Article affords immunity not only in respect of the exercise and performance of the powers and duties of the office but also in respect of “any act done or purporting to be done by him” in the exercise and performance of those powers and duties. These words ‘for any act done etc.” are commonly used in provisions of statutes having for their object the creation of absolute or partial bar of interference by Courts in respect of certain acts done or purported to be done under such statutes.

¶76

8. A comparison of Cl.1 of Art.361 with Cl.4 thereof makes it clear that in respect of official acts an absolute bar is created but in respect of acts done in personal capacity a partial bar in the shape of notice for a period of two months prior to institution of civil proceedings is imposed, similar to that to be found in S.80 Civil Procedure Code or Section 198 Customs Act and various others statutes.”

¶77

Rejecting the contention of the counsel for the petitioner that the nomination has been made by the Governor arbitrarily in contravention of the Constitution and for such ultra vires or arbitrary acts, Article 361 affords no immunity, it was held:

¶78

“……The words ’purporting to be done” are of very wide application and even though the act done is outside or in contravention of the Constitution, it comes within the protection of Art.361, if the act is professed to be done in pursuance of the Constitution. If the act is ostensibly done in exercise of the power given under the Constitution and it is not established that the act is done dishonestly or in bad faith or in other words, out of any improper motive the immunity attaches to the exercise of the power. The protection is intended to be real and not merely illusory. It may be that some of the persons nominated have not the requisite qualifications but it may be that the Governor was misinformed about the qualifications of such persons or it may be that he relied on the advice of his council of ministers and as a result of their recommendations, has made the nominations. The nominations may be the result of an erroneous decision or it may be a case of wrong choice but it cannot be said upon the materials which are before me, that the Governor acted mala fide in exercising his powers under Art.171 of the Constitution. In my view Art.361 creates an absolute bar and this application in so far as it seeks any relief against the Governor is wholly incompetent.”

¶79

It was further held:

¶80

“14. The Governor not being answerable to Court by reason of Art.361, it follows that the validity or invalidity of the nominations cannot be enquired into by the Court in the present case. The Governor not being liable to justify the nominations is not bound to disclose any facts relating to such nominations. The other respondents cannot also be properly called upon to support or justify the nominations because they may not know anything about the facts or considerations which led the Governor to make the nominations. The advice tendered by the ministers to the Governor cannot also be enquired into by the Court by reason of the provisions of Article 163(3) of the Constitution.”

¶81

We are in agreement with the views expressed by the Calcutta High Court and see no reason to differ with the same.

¶82

16. In PU MYLLAI HLYCHHO AND OTHERS v. STATE OF MIZORAM AND OTHERS (3 supra) the Supreme Court held that wherever the Constitution requires the satisfaction of the Governor for the exercise of any power or function, the satisfaction required by the Constitution is not personal satisfaction of the Governor but the satisfaction in the constitutional sense under the cabinet system of government. Our constitution envisages the parliamentary or cabinet system of government of the British model both for the Union and States. The Supreme Court has consistently taken the view that the powers of the President and power of the Governor are similar to the powers of the Crown under the British parliamentary system. Under the cabinet system of government as embodied in our constitution, the Governor is the constitutional or formal head of the State and he exercises all the powers and functions conferred on him by or under the Constitution on the aid and advice of the Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.

¶83

17. The Decision of the Supreme Court in S.R. CHAUDHURI v. STATE OF PUNJAB AND OTHERS (1 supra) has no application to the facts of the present case. In that case the issue involved is whether a person who is not a member of State Legislature can be appointed as a Minister and if he fails to get elected to the Legislature within a period of six consecutive months from the date of such appointment whether he would cease to be a minister at the expiry of that period. It was held repeated appointment of a nonlegislator as Minister, each time for a period of six consecutive months, would be subversive to parliamentary democracy.

¶84

18. The decision of the Supreme Court in M.P. SPECIAL POLICE ESTABLISHMENT v. STATE OF MADHRA PRADESH (2 supra) has also

¶85

no application to the facts of the case. That is a case where the Council of Ministers of State of Madhya Pradesh declined to sanction prosecution against two Ministers of the State for misconduct on the basis of a report submitted by the Lokayukta on the complaint lodged against the ministers. But the Governor on a consideration of the documents and the evidence placed before him opined that a prima facie case was made out for prosecution and accordingly, Governor sanctioned for prosecution under section 197 C.R.P.C. In that context, the Supreme Court held that normally Governor is required to act on aid and advice of Council of Ministers and not in his discretion as required under Article 163, but there may be situations where exercise of such discretion by himself may be proper viz., where bias is inherent and/or manifest in the advice or (ii) in those rare situations where on facts bias becomes apparent or (iii) where decision of Council of Ministers is shown to be irrational and based on nonconsideration of relevant factors or (iv) if Council of Ministers disables or disentitles itself or (v) where as a matter of propriety Governor may have to act in his own discretion and cautioned that if in such situations Governor cannot act in his own discretion there would be a complete breakdown of the rule of law and democracy itself will be at stake inasmuch as it would then be open for Governments to refuse sanction in spite of overwhelming material showing that a prima facie case is made out. The case on hand arose entirely in a different context. We are of the view that the aforementioned principles laid down by the Supreme Court have no application to the facts and circumstances of the present case where the Governor can act in his discretion.

¶86

19. The decisions relied upon by the learned counsel for the petitioner in JAYRAJBHAI JAYANTIBHAI PATEL v. ANILBHAI NATHUBHAI PATEL, CENTRE FOR PIL AND ANOTEHR v. UNION OF INDIA AND ANOTHER (6 supra) have no application to the facts of the present case.

¶87

20. The decisions of the Supreme Court in RAMESHWAR PRASAD AND ANOTHER V. UNION OF INDIA (4 supra) and S.R. BOMMAI v. UNION OF INDIA (5 supra) relate to exercise of power of judicial review by the Court in matters where the President dissolved the Assembly and imposed President’s rule under Article 356(1) of the Constitution. There is no dispute that the Court in exercise of the power of judicial review subject to limits prescribed by the Constitution can examine the issues arising out of the decisions of the Cabinet. But the present one is not a case where the Court in exercise of its power of judicial review can go into the decision of the cabinet in advising the Governor for nomination of the members by the

¶88

Governor under Article 171(3)(e) and Clause (5) of the Constitution. 21. The main contention of the learned counsel for the petitioner is that the persons nominated have no special knowledge or practical experience in the fields mentioned under Clause (5) of Article 171 viz., Literature, Science, Art, Co-operative Movement and Social Service, therefore, their nomination is not in accordance with the Clause (5) and the Governor ought to have acted independent of the advice tendered by the Council of Ministers. We are not inclined to accept the said submission. As already stated, unlike election of members to the Legislative Council under subclauses (a) to (c) of Clause (3) of Article 171 no procedure is prescribed for nomination of the members by the Governor. Merely because the note file circulated to the Chief Minister and the Council of Ministers did not disclose or indicate against each name of the person the field or category in which they are nominated, it cannot be said that the Council of Ministers have not appreciated the special knowledge or practical experience of the persons recommended for nomination in the fields enumerated under Cause (5).

¶89

22. The 1st respondent in the counter-affidavit has stated that persons nominated have special knowledge or practical experience in the fields enumerated in Clause (5). The learned counsel for the petitioner stated that there is no mention in the file to show that the persons nominated have such special knowledge or practical experience and a fair and reasonable procedure consistent with the object should be adopted. In the absence of any procedure or scheme provided under Article 171 of the Constitution or any right is reserved for the Parliament to prescribe a procedure for nomination of members to the Legislative Council by the Governor, it is not for the Court to suggest or evolve a procedure nor a direction can be issued to evolve a procedure. Therefore, the constitutional scheme of nomination by the Governor as recommended by the Council of Ministers has to be honoured by the Governor under Article 171(3)(e) of the Constitution. The opinion or conclusions arrived at by the Council of Ministers as to the special knowledge or practical experience possessed by them in the fields enumerated under Clause (5) of Article 171 cannot be gone into by this Court in exercise of the power of judicial review. Any such review would be contrary to the constitutional scheme of governance by cabinet system and would amount to intrusion into the powers of the executive. Therefore, the decision of the Governor is not justiciable.

¶90

23. In VIDYASASGAR v. KRISHNA BALLABHA (12 supra), in a similar situation, the Patna High Court held that whether members nominated to State Legislative Council under Article 171(3)(e) possess required qualifications is a question of fact and the same cannot be gone by the

¶91

Court. It was held:

¶92

“It has then been contended that opposite parties Nos.3 to 6 were not all qualified to be nominated under Article 171(5). Reliance is placed on paragraphs 5 and 6 of the application filed by the petitioner. In the Counter-affidavit filed by the Chief Minister, it is stated that opposite parties Nos.3, 4 and 5 are social workers and opposite party No.6 has special knowledge and experience in respect of Hindi literature. I am of the opinion, however, that this question cannot be judged by this Court in this case. This Court cannot be called upon to enter into this question of act for determining whether the members nominated in this case have or have not the required qualifications necessary under the Constitution. The assertions of the petitioner have been denied and that must conclude the matter.”

¶93

24. Therefore, whether the persons nominated possess special knowledge or practical experience in the fields enumerated under Clause (5) of Article 171 of the Constitution is not within the province of this Court. It is for the authority empowered under the Constitution or the Business Rules to assess the same and come to a conclusion. In the present case before us, the 1st respondent in his counter-affidavit categorically asserted that the respondents 4 to 8 did possess special knowledge and practical experience in the fields enumerated in Clause (5) of Article 171 of the Constitution and qualified for nomination under Article 171(3)(e). It is not for the Court to examine what is the special knowledge or practical experience the nominated members possess. Further, in the absence of any procedure prescribed under Article 171 to assess as to the special knowledge or practical experience the persons are required to possess in the fields enumerated under Clause 5 of Article 171, it is difficult to say that the assessment made by the authority is erroneous. Since the Council of Ministers has tendered advice after assessment of special knowledge or practical experience of the members, it has to be presumed that the nominated members possess the required special knowledge or practical experience in the fields enumerated under Clause (5) of Article 171. This Court in exercise of its jurisdiction under Article 226 cannot go into the question whether the respondents 4 to 8 possess the requisite qualifications or not and set aside the nominations made by the Governor.

¶94

In similar circumstances, this Court, in KATRAGADDA GANGARAM v. STATE OF ANDHRA PRADESH (9 supra) has also an occasion to deal with the nominations made by the Governor to the Legislative Council and following the decision of the Patna High Court in VIDYASAGAR v. KRISHNA BALLABHA (12 supra), declined to interfere with the

¶95

nominations made by the Governor under Article 171(3)(e) and Clause 5. 25. The decision of the Allahabad High Court in HAR SHARAN v. CHANDRA BHAN GUPTA (11 supra) relied upon by the learned counsel for the petitioner arose entirely in a different contest. There Sri Chandra Bhan Gupta who was not a member of the State Legislature was appointed as Chief Minister of Uttar Pradesh. Subsequently he was unsuccessful in getting elected to the State Legislature though contested on two occasions. But the Governor nominated him as member of the Legislature in a vacancy caused due to resignation of a member. It was argued that Sri Chandra Bhan has no special knowledge or practical experience in the fields enumerated in Clause (5) of Article 171. It was held:

¶96

17. In the facts of these admitted facts, the Court cannot accept the argument that a person who, according to the petitioner’s own case, has taken an active part in the politics and the governance of the State for several years, does not have any practical experience in matters of social service. On the contrary the presumption must be that he has. I am, therefore, unable to hold that any prima facie case has been made out that on 23rd January, 1961, the first respondent was not qualified in law to be nominated to the Legislative Council.

¶97

Though the Court has made some passing observations that Article 171 was not enacted to enable a minister who has been defeated in an election to enter the legislature by the backdoor method of nomination, or to enable the political party in office whose strength is derived from the verdict of the electorate to increase its numerical strength in the legislature without submitting to this verdict, but, ultimately, declined to interfere with the nomination.

¶98

26. The learned counsel for the petitioner then submitted that the decision is actuated by mala fides on the ground that all the members nominated belong to Congress Party and the Chief Minister recommended their names to further the narrow political interests. We find no merit in this contention. There is no bar under Article 171 of the Constitution to nominate a person in the political field having special knowledge and practical experience in the fields enumerated in Clause (5) as member of the Legislative Council. Even otherwise, no material has been placed before the Court to establish that the advice tendered by the Council of Ministers is actuated by mala fides. It may be noted that admittedly two of the nominated members were earlier appointed as members of the council in 2007 and on the expiry of their term, they were again nominated. Learned counsel for the petitioner submitted that even in the year 2007 also there is no material as to their eligibility and suitability for nomination. Where a decision has been taken by the Council

¶99

of Ministers in accordance with the constitutional scheme and recommendation has been made to the Governor and where the Governor has acted on the advice of the Council of Ministers in accordance with the provisions of the Constitution, the same cannot be interfered with. There is nothing in Clause (5) as to how the suitability or eligibility in the fields enumerated therein has to be judged. In the absence of any such thing, the conclusions arrived at by the Council of Ministers as to the suitability or eligibility of the persons under Clause 5 of Article 171 cannot be found fault with. Further, no person who has applied for nomination is aggrieved of the recommendation made by the Council of Ministers. In such view of the matter, the principle of wednesbury’s principle of unreasonableness has also no application. Further, this Court in Katragadda Gangaram’s case (supra) rejected a similar contention and held thus:

¶100

23. The learned Advocate-General argued that the question whether the nominations were made for political reasons to advance the interests of the ruling party is a political question and, therefore, not justiciable. In Constitutional Law by John E. Nowak, Ronald D. Rotunda and J. Nelson Young, the authors observed at page 190:

¶101

“The political question doctrine which holds that certain matters are really political in nature and best resolved by the body politic rather than suitable for judicial review is a misnomer. It should more properly be called the doctrine of non-justicability. This is, a holding that the subject matter is inappropriate for judicial consideration”.

¶102

24. In this case, the question, whether the nominations were made by the ruling party on political considerations to advance the interests of the ruling party and, therefore, it is a case of political impropriety, is undoubtedly a political question which is not justiciable. Therefore, the nominations of respondents 4 to 7 must stand.”

¶103

Therefore, the contention of the learned counsel for the petitioner that the nominations of respondents 4 to 8 were made for political reasons deserves to be negatived.

¶104

27. The contention of the learned counsel for the petitioner that there was no recommendation by the Council of Ministers and the nomination made on the basis of the recommendation made by the Chief Minister without the approval of the Council of Ministers is illegal has also no merit. The Council of Ministers presided over by the Chief Minister in the meeting held on 22.3.2011 has authorized the Chief Minister to recommend suitable names to Governor. Therefore, the recommendation made by the Chief Minister on

¶105

28.3.2011 to the Governor should be construed as a recommendation by the Council of Ministers.

¶106

In MRF LIMITED v. MANOHAR PARRIKAR (8 supra) the Supreme Court was dealing with a decision taken at minister’s level without submitting it to Council of Ministers or Chief Minister and without obtaining concurrence of Finance Department and contrary to the business rules framed under Article 163(3) of the Constitution. Therefore, the said decision has no application.

¶107

28. To sum up, the purpose underlying the Governor’s nominations under Article 171(3)(e) is to use the talents of such persons in the State as have achieved distinction in various fields and whose experience and advice may be of value to the State Legislature, but who have neither the time nor inclination to contest elections. All attempts hitherto made to bring the Governor’s nominations within judicial purview have proved futile. It has been consistently held by the Courts that under Article 163, except in cases where 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 acted on the advice of the Council of Ministers. By reason of Article 163(3), the advice tendered by the Ministers to the Governor cannot be enquired into by the Court. By virtue of Article 361, the validity or invalidity of the nominations could not be inquired into by the Court as this Article gives a complete protection to the Governor against a court action. Therefore, the Court could not go into the question whether the members nominated had or had not the required qualifications under the Constitution.

¶108

29. For the reasons aforesaid, we find no ground to interfere with the impugned notification. The Writ Petition is accordingly dismissed but with no order as to costs.

¶109

PINAKI CHANDRA GHOSE, ACJ

¶110

05-10-2012 VILAS V. AFZULPURKAR, J

¶111

LR Copy to be marked: Yes. VTV

¶112

HACJ, & VVA, J

¶113

After pronouncement of the judgment, learned counsel for the petitioner made an oral request for grant of leave to file appeal.

¶114

We do not find any substantial question of law in this matter and hence leave is refused.