The Supreme Court on Tuesday requested Maharashtra Governor Bhagat Singh Koshyari to ensure that a floor test is conducted on November 27 to determine whether Chief Minister Devendra Fadnavis commands the majority in the Legislative Assembly.
“In a situation wherein, if the floor test is delayed, there is a possibility of horse-trading, it becomes incumbent upon the Court to act to protect democratic values. An immediate floor test , in such a case, might be the most effective mechanism to do so,” a three-judge Bench led by Justice N.V. Ramana observed in its order.
The court referred to the nine-judge Bench judgment in the S.R. Bommai case in 1994 that said “it is the Legislative Assembly that represents the will of the people — and not the Governor”.
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The Bench, also comprising Justices Ashok Bhushan and Sanjiv Khanna, said there was need to order a floor test as an interim measure also because “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,” Justice Ramana pronounced the order in a packed courtroom.
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The court observed that neither had the legislators taken oath nor had the Speaker been elected.
The court laid down the procedure for the floor test. It ordered the immediate appointment of a Pro-tem Speaker solely for the conduct of the floor test. All the elected members shall take oath on November 27, which exercise should be completed before 5:00 p.m.
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“Immediately thereafter, the Pro-tem Speaker shall conduct the floor test in order to ascertain whether the Respondent No. 3 [Fadnavis] has the majority, and these proceedings shall be conducted in accordance with law,” the court ordered.
It directed that the floor test be not conducted by secret ballot. It ordered the proceedings to be live telecast.
Justice Ramana, speaking for the Bench, observed in the order that there was “no gainsaying that the boundaries between the jurisdiction of courts and parliamentary independence have been contested for a long time”.
“However, there is a need and requirement for recognising institutional comity and separation of powers so as to tailor judicial interference in the democratic processes only as a last resort. This case pertains to one such situation, wherein this court is called upon to adjudicate and maintain democratic values and facilitate the fostering of the citizens’ right of good governance,” Justice Ramana distinguished the case from others.
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The court, however, said the other questions of law in the Shiv Sena petition, which challenged the Fadnavis government formation on November 23, like the extent of judicial review and validity of the Governor’s satisfaction, would be adjudicated later at an appropriate time.
Justice Ramana said the Shiv Sena-NCP-Congress combine’s petition had raised “questions concerning important constitutional issues touching upon the democratic bulwark of our nation”.
