Reaffirming the Right of a Cabinet to Withdraw Unacted-upon Recommendations for Legislative Council Nominations

1. Introduction

The case of Mr. Sunil Modi v. The State of Maharashtra Through Its Chief Secretary and Others came before the High Court of Judicature at Bombay and was decided on January 9, 2025. It originated from a Public Interest Litigation (PIL) challenging the withdrawal of recommendations for the nomination of 12 members to the Maharashtra State Legislative Council. The petitioner argued that the withdrawal violated constitutional principles and undermined the Governor’s obligation to act on the advice of the Council of Ministers within a reasonable time.

The key actors in the litigation included:

Petitioner: Mr. Sunil Modi, represented by a team of advocates led by Senior Advocate Mr. Yashraj Sing Deora.
Respondents: The State of Maharashtra and its officials, represented by the Advocate General, Dr. Birendra Saraf, and the Additional Solicitor General, among others.
Court: The matter was heard before a Division Bench comprising Chief Justice Devendra Kumar Upadhyaya and Justice Amit Borkar.

This commentary explores the background of the case, the court's ruling, and the new precedent established regarding the constitutional power of a State Cabinet to withdraw unacted-upon recommendations for nomination to the Legislative Council.

2. Summary of the Judgment

In its final judgment, the High Court dismissed the petition, concluding that the Council of Ministers was within its constitutional authority to withdraw the initial nomination recommendations made to the Governor on November 6, 2020. Because the Governor never acted on those recommendations or issued any gubernatorial order under Article 166 of the Constitution of India, the advice remained in a state of “incomplete decision-making.”

The court ruled that:

Until a recommendation is acted upon by the Governor and formalized by a government order (in the name of the Governor), it remains tentative and can be withdrawn by the Council of Ministers.
No vested right arises for the individuals who were recommended but never officially nominated to the Legislative Council.
The Governor’s discretionary powers under Article 171(3)(e) and Article 171(5) do not extend to reactivating a withdrawn proposal that no longer has the backing of the Council of Ministers.

3. Analysis

A. Precedents Cited

In arriving at its decision, the High Court relied upon its own earlier decision in the related PIL (L) No. 10300 of 2021 (Ratan Soli Luth case), as well as landmark decisions of the Supreme Court concerning gubernatorial discretion and the effect (or lack thereof) of unacted-upon government recommendations:

Rameshwar Prasad & Ors. vs. Union of India & Anr. (2006) 2 SCC 1. This Supreme Court decision discusses the Governor’s role and discretionary powers, clarifying that the Governor is bound by constitutional principles and must act within the scope allowed.
M.P. Special Police Establishment vs. State of M.P. & Ors. (2004) 8 SCC 788. Cited for principles on constitutional obligations of political functionaries and their discretionary limits.
State of Kerala Vs. Smt. A. Lakshmikutty & Ors. (1986) 4 SCC 632. This precedent was central to the court’s reasoning that unless a decision taken by the Council of Ministers is formally issued as a government order in compliance with Article 166, it remains tentative and can be revisited or withdrawn.

B. Legal Reasoning

The court’s legal reasoning is anchored in the constitutional framework that defines the interplay between the Governor and the Council of Ministers, particularly Articles 163, 166, and 171(3)(e) of the Constitution. Key points of the court’s reasoning include:

Nature of Gubernatorial Discretion: While the Governor possesses limited discretionary powers under Article 171(5) and Article 163 of the Constitution, this discretion is triggered only when there remains a valid and subsisting recommendation from the Council of Ministers.
Role of Article 166: Under Article 166 of the Constitution, any recommendation or advice by the Cabinet must be translated into a formal order in the name of the Governor for it to be valid as a State action. In the absence of such an official order, the recommendation is inchoate (incomplete).
Lack of Vested Rights: No legal right vests in recommended individuals unless the Governor acts upon the advice and issues a formal nomination via a government notification.
Cabinet’s Power to Withdraw: Because the Governor never acted upon the initial proposal, the Council of Ministers retained the power to withdraw it. Once withdrawn, there was no longer any recommendation for the Governor to act upon.
Timing and Reasonability: The court recognized the concern that the Governor did not act for an extended period, noting this was contrary to the spirit of prompt constitutional action. However, that did not negate the Cabinet’s authority to withdraw the unacted-upon proposal.

C. Impact

This decision holds significant implications for future nominations to the Legislative Council and clarifies the constitutional relationship between the executive and the Governor. Specifically:

It reaffirms that a Council of Ministers may validly retract a recommendation if it remains unacted upon by the Governor over a prolonged period, thereby preventing a constitutional stalemate.
It underscores that those who are the subject of the Council’s recommendation for nomination to the Legislative Council do not gain any ipso facto right to be seated unless and until the Governor officially approves the nomination and a formal order is issued.
The ruling promotes accountability by ensuring both the Governor and the executive branch must discharge their responsibilities promptly. Should the Governor delay action unreasonably, the executive can reconsider or withdraw proposals to align with its current policies or changed circumstances.
Finally, the judgment adds weight to the principle that the Governor’s discretion, though existent in rare circumstances, cannot revive or enforce an advice that no longer stands due to its withdrawn status.

4. Complex Concepts Simplified

Several constitutional provisions and concepts were frequently referenced in this case:

Article 163 (Council of Ministers to aid and advise the Governor): This provision mandates that the Governor must ordinarily act on the advice of the Council of Ministers, except in specific situations where the Constitution grants the Governor discretionary powers.
Article 166 (Conduct of Government Business): Requires every executive action of a State to be taken in the name of the Governor and ensures that government decisions become effective only when duly expressed and communicated in a prescribed manner.
Article 171(3)(e) and Article 171(5) (Legislative Councils): Establish the Governor’s role in nominating members to the Legislative Council under certain stipulated qualifications.
Pocket Veto: A term drawn in analogy to a legislative setting wherein the authoritative figure (e.g., Governor or President) indefinitely delays taking action on a legislative or executive proposal. This judgment clarifies that such a form of delay (or “pocket veto”) is constitutionally suspect because the Governor must either act or return the recommendation within a reasonable time.

5. Conclusion

In Mr. Sunil Modi v. The State of Maharashtra and Others, the Bombay High Court delivered a definitive stance clarifying that recommendations by the Council of Ministers, not yet acted upon by the Governor, may be withdrawn without conferring any rights on the recommended individuals. The court also reiterated that the Governor’s limited discretion cannot supplant the Cabinet’s expressed desire to rescind its proposal, particularly when no formal nomination had occurred.

This ruling underscores the importance of procedural regularity and timeliness in constitutional decision-making, highlighting the significance of Articles 163 and 166 in preventing stalemates and ensuring smooth governance. Ultimately, the judgment fortifies the principle that while the Governor holds certain discretionary powers, they cannot be exercised to overrule or maintain a defunct recommendation once it has been withdrawn by the executive.