The Leaflet

| @theleaflet_in | November 26,2019

[dropcap]T[/dropcap]HE Supreme Court on Thursday on a petition filed by the Shiv Sena-NCP-Congress issued a slew of directions for conducting a floor test to ascertain whether the Chief Minister of Maharashtra Devendra Gangadharrao Fadnavis enjoys a majority in the Maharashtra legislative assembly.

A special bench of the apex court comprising Justices N V Ramana, Ashok Bhushan and Sanjiv Khanna has requested the state Governor to ensure that the floor test is held tomorrow, November 27, 2019. The Court has also issued directions that are to be followed while conducting the floor test. They are-

  • Pro­tem Speaker shall be solely appointed for the aforesaid agenda immediately.
  • All the elected members shall take oath on 27.11.2019, which exercise should be completed before 5:00 p.m.
  • Immediately thereafter, the Pro­tem Speaker shall conduct the floor test in order to ascertain whether the Respondent No. 3 (Chief Minister Devendra Fadnavis) has the majority, and these proceedings shall be conducted in accordance with law. The floor test will not be conducted by secret ballot.
  • The proceedings have to be live telecast, and appropriate arrangements are to be made to ensure the same.

The Court observed we may note that in the present case, the oath has not been administered to the elected members even though a month has elapsed since the declaration of election results. In such emergent facts and circumstances, to curtail unlawful practices such as horse-trading, to avoid uncertainty and to effectuate smooth running of democracy by ensuring a stable Government, we are of the considered opinion that it is necessary to pass certain interim directions in this case.   In this context,   it is necessary and expedient to conduct the floor test as soon as possible to determine whether the Chief Minister, who was administered the oath of office, has the support of the majority or not. Since the elected members of the Legislative Assembly are yet to take oath as specified in the III Schedule of the   Constitution”.

On the issues of maintainability, the extent of judicial review and validity of the Governor’s satisfaction, the court noted that they can be adjudicated at an appropriate time.

“There is no doubt that the contentions have to be answered, as the petitioners have raised questions concerning important constitutional issues touching upon the democratic bulwark of our nation.  However, at this interim stage, we may note that it is imperative for this Court to be cognizant of the need to take into consideration the competing claims of the parties, uphold the democratic values and foster constitutional morality”, the court said.

The petition, filed through Advocate-on-Record (AoR) Sunil Fernandes, had sought, as an interim relief, a court direction summoning a special session of the Fourteenth   Maharashtra   Legislative Assembly with the sole agenda of administering the oath to the newly-elected MLAs, followed immediately by the holding of the floor test.

Speaking to The Leaflet on the order passed by the court today, Sunil Fernandes said “I am grateful to the Supreme Court that they have followed the consistent line of judgments from Jagdambika Pal (1998) to Anil Kumar (2005) to Karnataka (2018) and ordered for an immediate floor test with adequate safeguards. History has proved, that once an interloper is forced to demonstrate his majority within 24 hours,  it achieves a dual purpose  – of ousting the interloper and militating against the possibility of any horse-trading”.

 

Facts of the case

 

Shiv Sena, the Nationalist Congress Party (NCP) and the Indian National Congress (INC) had approached the Supreme Court on November 23, 2019, seeking to quash the decision dated November 23, 2019, of the Governor of Maharashtra inviting Devendra Fadnavis to form the Government in the state.

The petitioners had also sought a direction from the top court to invite the Shiv Sena, INC and NCP (together specified as “maha vikas aghadi”), as they are the majority to form a coalition government in the 14th legislative assembly election in the state of Maharashtra.

They alleged that facing the prospect of a non-BJP Government staking claim to power, the BJP in the intervening night of November 22 & 23 had resorted to political machinations in an attempt to install a completely unconstitutional BJP Government in the State.

“There is nothing in the public domain as to how and in what manner Shri Devendra Fadnavis and/or the BJP had staked claim power between the intervening night of November 22 & 23”,  the petitioners said.

There was no material, according to the petitioners, in the public domain to show that Devendra Fadnavis had carried letters of support of 144 MLA’s (which in any event was not legally possible to do). The Petitioners categorically asserted that all the MLA’s of the Shiv Sena, NCP and Congress are completely and solidly with the alliance except for Shri Ajit Pawar.

Petitioners had told the apex court that the Governor acted in a partisan manner and made a mockery of the high office of the Governor. According to them, Governor’s actions between the intervening night of November 22 & 23 culminating to the swearing-in on the November 22 are a textbook example of the Governor acting at the behest of a political party in power at the Centre.

In the early hours of November 23 at around 5:47 am, the Presidential Proclamation issued on November 12, imposing President’s Rule was revoked by the President. Thereafter, according to the petitioners, at about 8:00 am, the Raj Bhavan in a makeshift and a hurriedly convened swearing-in ceremony administered an oath to Devendra Fadnavis of the BJP as Chief Minister of the State and further to Shri Ajit Pawar of the NCP as Deputy Chief Minister.

The Governor was duty-bound to study the claim if any made by Shri Devendra Fadnavis, more so when admittedly the previous night all the three political parties commanding strength of 154 MLA’s had categorically stated that they will be staking claim to form the Government”, the petitioners asserted.

The matter was first heard on Sunday as per the directions of the Chief Justice of India as the petitioners had pleaded urgency in the matter. The Court had then asked Solicitor General Tushar Mehta to produce the order of the Governor as well as the letters submitted by Devendra Fadnavis staking a claim to form the Government.

Senior advocate Kapil Sibal argued for the Shiv Sena, while senior advocate Abhishek Manu Singhvi argued on behalf of the NCP and Congress. On the other side, Solicitor General Tushar Mehta argued for the Secretary to the Governor of Maharashtra. Senior advocate Mukul Rohtagi appeared for CM Devendra Fadvanis and senior advocate Maninder Singh argued for Ajit Pawar.

 

Read the Order here:

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