fbpx

Discretionary Powers of Governor for appointment in Legislative Council is absolute or subject to advice of Council of Ministers

April 19, 2020

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) […]

Read more