MUMBAI: Bombay high court on Monday gave the Union ministry of law and justice time to file an affidavit after additional solicitor general Anil Singh raised a preliminary issue of maintainability to oppose a petition that challenged the validity of
of the Indian Constitution itself.
Article 171 deals with nominations of members to state
and requires state
to nominate some names of those who have “special knowledge or practical experience in respect of such matters as the following, namely: Literature, science, art, co operative movement and social service.’’
The petitioners are Sangli resident Shivaji Patil and SP Agale from Latur who claimed that Article 171 goes against Article 14 (right to equality) and rule of law and wanted to be nominated as well as member of the legislative council.
The petitioner’s counsel S B Talekar argued before a bench of Justices K K Tated and Abhay Ahuja, that the membership is disbursed as largesse and that the practice followed by the Governor in nominating 12 members to the State Legislative Council with or without aid and advice of
the Council of Ministers
has led to misuse of powers and as a result it “offends the basic structure of the Constitution such as the rule of law and separation of powers.’’
But Singh opposed the petition on grounds of maintainability saying it seeks to question the very basic structure of the Constitution which is impermissible as held by various Supreme Court judgments. He said a law can be challenged as being unconstitutional but the Article 171, which has been in existence since the Constitution was drafted, itself cannot be challenged.
Talekar said the decision that finalised 12 names in a meeting held on June 17 for nomination was not published so far or made public depriving people from raising any objections.
Talekar, also argued that nominated members of the State Legislative Council need to be subjected to rigorous scrutiny before their nomination.
The government pleader P P Kakade sought time to file an affidavit explaining as to why such information was not made available in the public domain.
The HC gave time to file replies by July 22 and posted the matter for hearing next on July 27.