Averring that the “ramblings” between the Maharashtra Governor and Chief Minister “do not take the State forward”, the Bombay High Court on Wednesday observed that it was “unfortunate” that the two highest functionaries of the State “do not trust each other” and asked them to “sit together” and “sort out” the differences between them.
Expressing its displeasure over the strained relations between the Governor Bhagat Singh Koshyari and chief minister Uddhav Thackeray, a HC bench of Chief Justice Dipankar Datta and Justice MS Karnik indicated that the state was suffering because both the Governor and the chief minister were not on the same page.
"The unfortunate part is that the two highest functionaries (Governor and Chief Minister) do not trust each other. You both please sit together and sort this out between yourselves. Erase all these differences. Your ramblings do not take the State forward. There is always the other side of the coin. We all read. The governor and CM are not on the same page.... Who is suffering?" CJ Datta noted.
Taking serious exception to the Governor’s failure to implement its order of August 12, 2021 “to accept or return” the State Cabinet’s recommendation to nominate 12 members to the State Legislative Council, the HC bench lamented: "We are also a Constitutional Court, how have we been treated? We had passed an order on the 12 MLCs case. Today we are on March 22. Eight months have passed and still nothing has happened”.
“The Chief Minister is the head of the executive. He has to run the state. We cannot say either of them is wrong. Has democracy died because the governor hasn't nominated 12 MLCs, an issue graver than the present? Our democracy is not as fickle/ brittle," the Bench noted.
The HC bench made these observations while dismissing two public interest litigation (PILs) petitions filed by Opposition BJP MLA Girish Mahajan and citizen Janak Vyas challenging rules for election of speaker and deputy speaker of Maharashtra Assembly.
The two PILs had contested the State notification altering Rules 6 (election of speaker) and 7 (selection of deputy speaker) of the MLA Rules, claiming it is arbitrary and in violation of the Constitution.
The petitions had among other things stated that the state government by way of the amendment to Rules nos 6 and 7 had removed the procedure of secret ballot and replaced it with voice vote, restricted the power of the Governor to notify the date of the election and the same had been transferred to the Chief Minister (which gives absolute power to the Chief Minister of State by holding elections) and replaced ‘election’ of the deputy speaker for 'selection’.
Refusing to accept petitioners’ plea seeking an order declaring the amendment as “unconstitutional and illegal” on the ground – as stated by petitioner Girish Mahajan’s lawyer Mahesh Jethmalani that when amendments were made, Mahajan was serving his suspension period, Chief Justice Datta noted: "Say these rules are made in your absence, which affect the public at large. Can you come back and say that decision should be reversed. Can that be done? Can you seek reversal? No, it cannot be done!"
While rejecting Jethmalani’s contention that the public at large were affected by the amendment, CJ Datta observed: “The public is least concerned with the election of speaker and deputy speaker. Just ask in this very courtroom who is the Lok Sabha speaker. How many will be able to reply? Until and unless this deals with the public at large, this cannot be entertained in a public interest litigation," CJ Datta remarked.
On his part, Jethmalani and Advocate Subhash Jha, appearing for the second petitioner Janak Vyas, told the HC bench that the Chief Minister could not ask the Governor at all to fix a date for the speaker election. He went on to argue that the purpose of the Court was to ensure that everyone remained within their boundaries and followed good governance.
However, the HC bench did not accept the arguments made by the petitioners’ lawyers. “The rules do not say anywhere the Chief Minister is unilaterally taking a decision to appoint speaker and deputy speaker. He is only taking a decision on the date of election," the HC bench noted, while dismissing the two petitions.
Wednesday was the second occasion in the last eight months when the high court has passed some serious remarks about the Governor. It may be recalled that on August 12, 2021 a HC bench, headed by Chief Justice Datta himself, had made telling comments while disposing of a PIL seeking its intervention over the Governor’s “inaction” in taking a decision on the Maharashtra government’s recommendation made on November 6, 2020
At that time, a HC division bench of Chief Justice Dipankar Datta and Justice G. S. Kulkarni had observed: “Of course, the Governor is not answerable to the Court in view of Article 361 of the Constitution and no direction can issue to the Governor; hence, the petitioner has not joined the Secretary of the Governor as a party despite liberty granted by an earlier order of this Court”.
“Before parting, this Court expresses hope and trust that things will be set right at an early date. If indeed, during the pendency of this writ petition, the Governor has acted on the advice of the Council of Ministers, in whatever way it was thought appropriate by him, that would take care of the petitioner’s concern completely. The Public Interest Litigation is, accordingly, disposed of with no orders as to costs,” the HC bench had said.
In its earlier observation in the judgement, the HC bench averred: “This Court, therefore, concludes the judgment by making a public law declaration that the obligation, which the Constitution vests on the Governor to either accept or return the recommendations as made by the Council of Ministers forming part of advice, has to be discharged within a reasonable time”.
“Eight months, in fact, seems to be beyond reasonable time. This Court, having regard to the gravity of the issue involved and the necessity to fill up the vacant seats of members expeditiously as well as to sub-serve the aims set by the Constitution, would consider it eminently desirable if the obligation, in the present case, is duly discharged without undue delay”.
In its remarks preceding its conclusion, the HC bench had made some pertinent observations when it said: “The recommendations made by the Council of Ministers have become eight months old by the time this Court commenced hearing of this petition. If the saying that everything happens for a reason is to be believed, this Court ought to assume that there was/were genuine reason(s) for the Governor not to convey his decision earlier, whatever be the nature thereof”
“However, it is time that the impasse is resolved. It is mature, sensible and responsible governance, both at the Centre as well as in the States, that the people look up to. Should there be any misunderstanding or miscommunication between two Constitutional authorities/functionaries, right steps in the correct direction ought to be followed to obviate the same,” the HC bench had observed.
“If there be minor differences of opinion, the same ought to be resolved in such manner as deemed fit and appropriate including, inter alia, a discussion between the Governor and the Chief Minister in the guiding spirit of the Constitution. Indeed, if there are major differences, the same have to be made known for ironing out such differences,” the Judges had noted.