Discretionary Powers of Governor for appointment in Legislative Council is absolute or subject to advice of Council of Ministers
Recently a question was asked with identical facts happening in a State where Council of Minister passed Resolution for nominating a member in Legislative Council, whether the same is binding upon Governor or he can refuse to accept?
To study this question let us see provisions of the Constitution of India and various judgments on the issue.
Let us see provisions of A.163 of Constitution of India.
Article 163 in The Constitution of India 1949
163. Council of Ministers to aid and advise Governor
(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
(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
(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
According to Article 171(3)(e) of the Constitution the State Governor is to nominate one-sixth of the members of the Legislative Council. Article 171, clause (5) stipulates “The members to be nominated under sub-clause (e) of clause (3) shall consists of persons having special knowledge or practical experience In respect of such matters as the following; Literature, Science, Art, Co-operative Movement
and Social service.”

171. Composition of the Legislative Councils
(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
(2) Until Parliament by law otherwise provides, the composition of the Legislative Council of a State shall be as provided in clause ( 3 )
(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) 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
(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
Stare Decisis
Biman Chandra Bose Versus H.C.Mukherjee Governor and Ors.(Dr.)
The petitioner in this matter had challenged the validity of the nominations on various grounds set out in the petition, that the petitioner’s constitutional right has been immensely prejudiced by the nominations and in making such nominations the Governor has exercised his discretion arbitrarily and his act is unconstitutional. It was observed by the court that, from Article 163 says 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, Article 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. Reference may be made to Sections. 50, 51, 52(3), 55, 56, 57, 58, 228 and various other sections of 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. Article 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 nomination’ Governor must have acted on the advice of his council of ministers. The Court is entitled to presume the regularity of official acts.
Now, adverting to Article 361 of the Constitution it appears upon an analysis of this Article that the Governor is not answerable to any Court for the exercise and performance of the powers and duties of his office. In other words, no Court can compel the Governor to exercise any power or to perform any duty nor can a Court compel him to forbear from exercising his power or performance of the duties. He is not amenable to the mandate or writs or directions issued by any Court. These words are wide enough to bar any interference by the Court in respect of the official acts or omissions of the Governor. But the framers of the Constitution have taken the precaution of using additional words in the Article, with a view to extend the protection even in respect of acts or omissions which can be said to be incidental to the exercise of the power and performance of the duties of the office of the Governor. 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 A comparison of Clause 1 of Article 361 with Clause 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 Section 80, Civil P. C. or Section 198, Sea Customs Act and various other statutes.
Ranjana Agnihotri and others Versus State of Uttar Pradesh and others 2015 (7) ADJ 259 it was held that, from a simple reading of Article 171 (2)(e) read with Article 171(5) of the Constitution it is apparently clear that nomination of 1/3 members to the Legislative Council is made by the Governor of the State in his discretion, of persons having special knowledge or practical experience in the fields prescribed. We have no hesitation to record that this discretion conferred upon the Governor has to be exercised within the parameter of the Constitution and not beyond it. The Court was also of the opinion that in the matter of nomination under Article 171(2)(e), the advise of the Council of the ministers is not binding upon the Governor. He is to act on his own discretion.
Jurisdiction of Court : Articles 31(c) 74(2) 77(2) 122(2) 163(2) 163(3) 212 262(2) 329 361 and 363. Doubtless, under these Articles, the jurisdiction of the Courts has been expressly ousted. Bijayananda Patnaik and Ors. Versus President of India and Ors. Vidyasagar Singh Versus Krishna Ballabha Sahay And Ors. it was held that, “ Learned counsel was unable to answer what will happen if four persons or six persons have to be nominated to the Council. In any event this requirement under the Constitution states that the members to be nominated shall consist of persons having special knowledge or practical experience “in respect of such matters”, as mentioned therein. Even the categories mentioned may not be exhaustive in their scope. It is not possible to hold that each of the subjects mentioned in this requirement of law must be represented in every case.”

Conclusion:
Reading Article 171(5) of the Constitution it is clear that nomination of 1/3 members to the Legislative Council is to be made by the Governor of the State in his discretion, of persons having special knowledge or practical experience in the fields prescribed. The Governor has to exercise powers within the parameter of the Constitution and not beyond it. The opinion of courts looking at various judgments that in the matter of nomination under Article 171(2)(e), the advise of the Council of the ministers is not binding upon the Governor. He is to act on his own discretion.

Shruti Desai
19th April,2020

Leave a Reply

Your email address will not be published. Required fields are marked *