New Delhi: The Supreme Court has ordered the central government to produce before it two letters that culminated in Devendra Fadnavis being sworn-in as chief minister of early Maharashtra Saturday morning — his letter claiming support of enough MLAs, and Governor Bhagat Singh Koshyari’s letter inviting the BJP and NCP to form the government.
The documents have to be submitted before 10:30 am Monday.
The three-judge bench consisting of Justices N.V. Ramana, Ashok Bhushan and Sanjiv Khanna also said in its order that the NCP-Congress-Shiv Sena petition asking for a “floor test within 24 hours needs to be considered”.
The bench asked Solicitor General Tushar Mehta if the central government, which he was representing, was authorised to call for the documents from the governor, which he did not respond to.
NCP-Congress-Shiv Sena’s arguments in court
Early Saturday morning, Governor Koshyari administered the oath of office to Fadnavis as CM and NCP’s Ajit Pawar as deputy CM, a few hours after the NCP, Congress and Shiv Sena had announced that they would form a government headed by the latter’s president Uddhav Thackeray.
Senior Advocate Kapil Sibal, who represented the NCP, argued that the court was looking at the post-poll alliance and not a pre-poll alliance, as is the norm.
The NCP’s main contention was that when the three parties had already declared that they would form the government on the evening of 22 November (Friday), how was it possible for the governor to come to the conclusion overnight that Fadnavis could form a stable government?
“There were no records in the public domain — neither the letter to the governor staking claim, nor the letter of governor inviting Fadnavis to form government. Everything is in the dark, and in a bizarre move, the President decided to revoke President’s rule,” argued Sibal.
Sibal stated that a floor test was required urgently, saying “if the Fadnavis government has the numbers, there is no need to delay; else, we will form government”. He added that the BJP was “not willing to prove numbers on the floor of the house because they want to use the days for something else”.
Senior lawyer Abhishek Manu Singhvi, who appeared for the NCP and Congress, attacked Ajit Pawar for claiming the support of 54 NCP MLAs and becoming the deputy CM, as 41 of the 54 had signed a Marathi letter to the governor supporting his removal as the legislative party leader.
“NCP has 54 members, 41 signed the resolution where Ajit Pawar was removed as legislature party leader… Then how can Pawar be appointed as deputy CM? This is illegal,” said Singhvi.
Sibal added that Ajit Pawar becoming deputy CM was an “annihilation and murder of democracy” because this works on numbers. “He had no numbers as 41 out of 54 had removed him as leader of the NCP,” insisted Sibal.
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What the petition states
The three parties had sought a direction to Governor Koshyari to invite them to form the government under Thackeray, saying they have the support of more than 144 MLAs in the 288-member house. The petitioners alleged that the governor acted in a “partisan manner” and allowed himself to be a “pawn in the BJP’s illegal usurpation of power”.
The parties have further prayed for an “immediate floor test within 24 hours so as to avoid further horse trading and illegal manoeuvres to somehow cobble up a majority from the MVA (Maha Vikas Aghadi)”, which is what their coalition is called.
“It is submitted that the governor has acted in a partisan manner and made a mockery of the high office of governor,” the plea filed Saturday said.
Koshyari’s actions on the intervening night of Friday and Saturday “are a textbook example of the governor acting at the behest of a political party in power at the Centre”, the parties submitted.
The plea said any action of the governor in inviting a political party to form government has to be based on prima facie satisfaction and objective material which, in the present case, is completely conspicuous by its absence.
‘Governor immune to judicial review’
Mukul Rohtagi, who was representing independent MLAs and some BJP leaders, argued that the governor’s action was immune to judicial review.
“The entire petition is based on the governor’s actions. Article 361 states the governor cannot be answerable for actions undertaken in exercise of his powers. The time when he chooses a CM cannot be open to court’s scrutiny,” argued the former Attorney General of India.
When Justice Ramana intervened to remind Rohatgi that the law is clear on the role of the governor, Rohatgi insisted that: “The question is whether the governor can be ordered to prepone the floor tests. Why didn’t they (the three parties) go to the governor asking for documents?”
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The immediate decision the SC could take would be to fix the date of the floor test. However, in its detailed order that could follow, it could review the entire sequence of events and lay down useful guidelines that would help constitutional functionaries discharge their onerous obligations better.