CONUNDRUM SURROUNDING THE MISUSE OF THE POWER OF APPOINTMENTS UNDER ARTICLE 171(5).By Vaishnavi Bansal, SkillxProAbstract: The past few months have raised serious questions about the appointments made by the Governor under Article 171(5) of the Constitution of India with a number of petitions lodged in the courts. The recent nominations to Maharashtra State Legislative Council have been challenged in the High Court on the ground of being made on political and extraneous considerations rather than the parameters given in the provision. The similar doubts arose when Uddhav Thackrey was given nomination under these Governor quota seats in the earlier half of the year.
Article 171 of Constitution of India describes the manner of the nomination for membership to state legislative council. It provides that five members having special knowledge or practical experience in Literature, science, art, co-operative movement or social service should be nominated by the Governor.
The inherent intention behind the provision was to provide an impartial group of individuals having invaluable expertise in their area. It will provide a balanced third party view from these experts of their respective fields. The same was upheld by the court in the case of Ram Gopal Sisodia v. Union of India, where it was ruled that the nominated members should take a broader view of the issues, which may be different than elected members, providing exposure to different circumstances.
However, the practicality of the application of the provision is far from what was envisaged. There have been numerous instances where the nominations made by the Governor are challenged as the Governor is just a puppet in the hands of political parties and the people nominated are mostly nominated not due to their experience in the field but because of their personal dynamics with the winning party. In the challenge to Maharashtra State Legislative Council nominations (Dilip Panditrao Agale v. The State of Maharashtra & Ors.) also, this very fact has been stated by the petitioner highlighting that in these nominations no applications or proposals are invited and only the people close to the centre of power enjoy the confidence and given nomination. There is no denying fact that people nominated have connections to the winning political parties.
The view of the judiciary also in such a scenario is not very favourable to the petitioner’s claims. It has been held by the Patna High Court in Vidyasagar Singh v. Krishna Ballabha Sahay, that the qualification of the nominated persons under Article 171(5) was a ‘question of fact’ and the Court cannot be called upon to decide on it. Hence, the decision of Governor taken on the recommendation of the Council of Ministers has to be final and cannot be questioned.
Similarly, Calcutta High Court in Biman Chandra Bose vs Dr H C Mukherjee has held that the Governor cannot use his discretion in nominating members to the Council. He has to go by the aid and advice of the Council of Ministers. In Har Sharan Varma v. Chandra Bhan Gupta, the court gave a wide interpretation to the terms ‘special knowledge’ or ‘practical experience’ in the fields prescribed under Article 171 and held that previous political positions can be counted as “practical experience ” in the field of social service.
Hence, judiciary showcases non-interference attitude in this regard. Even among academia, constitutional experts are divided on the opinion. Majority of whom are of the opinion that since the Governor in our Constitution is given much practical power per se, hence he is obliged to nominate whoever he has been advised by the council of ministers. Though this may not be an ideal situation but it is not unconstitutional. It will be interesting to note if the judiciary goes leaps and bounds in this case to stop such practices, though it is of a very low possibility as it will stir a different debate. However, the issue at hand is of serious concern as it directly attacks the spirit of democracy and it will be in the public interest if there is a development of objective criteria to determine expertise in the fields given in Article 17(5).
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