The Supreme Court on Sunday put on hold a plea for ordering a floor test in the Maharashtra Assembly till it examined records that might shed light on what led Governor Bhagat Singh Koshyari to invite BJP leader Devendra Fadnavis to form the government and later swear him in as the Chief Minister on November 23.
A three-judge Bench, led by Justice N.V. Ramana, requested Solicitor-General Tushar Mehta, in his capacity as the Centre’s law officer, to place on record before the court, by 10.30 a.m. on November 25, the letter of Mr. Fadnavis to the Governor staking claim to form the government.
Mr. Mehta was also asked to produce the Governor’s order of November 23.
Though Mr. Mehta urged the court to give him time till Tuesday (November 26) to produce the documents, the Bench insisted he hand them over on Monday itself.
The order came after Mr. Mehta submitted that the Centre was authorised to call for all the documents from both the State government and the Governor.
Senior advocate Mukul Rohatgi, for some Maharashtra BJP MLAs and two Independents, took on the Shiv Sena-NCP-Congress combine for “disturbing the Supreme Court and us on a Sunday” with their “urgent requests” for a floor test in the next 24 hours. Mr. Rohatgi said the combine had filed “a petition without annexures”.
“They have no documents. When the court asks them for information, they say, ‘We don’t know’. Why do they not first go and ask the Governor for all the details? Why did they rush to the Supreme Court?” he asked. He said the case could very well be heard after “two or three days”.
But senior advocate Kapil Sibal, for the Shiv Sena, said the political combine could prove its majority on Sunday itself.
Senior advocates A.M. Singhvi and Devadatt Kamat with advocate Sunil Fernandes, for the NCP and the Congress, said if Mr. Fadnavis’s claim that he has a majority is true, why is he nervous about proving it in the House within the next 24 hours.
Mr. Singhvi said there is a “shroud of mystery” over how the Governor made up his mind to suddenly invite Mr. Fadnavis to form the government, shortly after the President’s Rule was revoked at 5.47 a.m. on November 23.
“We (Shiv Sena) announced our intention to form the government at 7 p.m. on November 22. Suddenly, the President's Rule is revoked at 5.47 a.m. the next day without a Cabinet meeting... Why? Was this a matter of national emergency? And then we see Fadnavis and Ajit Pawar sworn in a closed-door ceremony,” Mr. Sibal argued.
Mr. Singhvi submitted that the BJP claimed majority with NCP support led by Mr. Pawar.
“But 41 of the total 54 elected members of NCP rejected Ajit Pawar as their legislative party leader just a few hours after he was sworn-in as Deputy Chief Minister. How can BJP claim that Ajit Pawar is NCP when 41 NCP members have rejected him?” Mr. Singhvi asked.
“What are the facts, resolutions? What was the nature of invitation of the Governor showing he was prima facie satisfied about Fadnavis enjoying majority? Nothing is available in the public domain. This is bizarre. This suggests the Governor acted under direct instructions from ‘above’,” Mr. Sibal submitted.
Counsel for the Shiv Sena and Congress submitted that the Governor’s action was suspect. Mr. Singhvi pointed out that, in such cases, the Supreme Court has always ordered for an immediate floor test.
Countering this, Mr. Rohatgi said the very petition filed under Article 32 (invoked when the State violates the fundamental rights of citizens) is not maintainable as the petitioners here are political parties and not human beings. But Justice Sanjiv Khanna said this was a technical objection and the court was empowered to look into whether the series of events which led to the formation of the new government had undermined the basic principles of democracy.
Mr. Rohatgi then invoked Article 361 of the Constitution which provides both the President and Governor immunity from legal action by courts for acts done in exercise of their official functions.
Mr. Rohatgi further said the court cannot order the House to conduct a floor test.
“The Supreme Court should respect the House as the House respects the Supreme Court,” Mr. Rohatgi argued.
On the petitioner parties’ plea for immediate floor test, Mr. Rohatgi said the election got over on October 24 and “they were sleeping for 19 days, now they want a floor test to be conducted today itself”.
