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What will SC rule on Maharashtra govt formation? These past cases may hold the key

Mukul Rohatgi cited Article 361 of the Constitution to argue that governors are beyond judicial review, but SC has previously said this immunity isn’t absolute.

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New Delhi: Prolonging the ongoing political crisis in Maharashtra, the Supreme Court Sunday ordered the central government to produce the letters that Devendra Fadnavis submitted to Maharashtra Governor B.S. Koshyari, as well as the letters of support that made him swear-in the BJP leader as chief minister and NCP leader Ajit Pawar as deputy CM.

The court directed the letters to be submitted by 10:30 Monday, putting off the floor test in state assembly for at least another 24 hours, providing a breather to the BJP-NCP government.

The bench comprising Justices N.V. Ramana, Ashok Bhushan and Sanjiv Khanna, was hearing a petition filed by the Shiv Sena, Congress and NCP Saturday night. While senior advocates Kapil Sibal and Abhishek Manu Singhvi represented the three parties in court, former Attorney General Mukul Rohatgi appeared for BJP MLAs and independents.

The parties’ petition claimed that the governor’s decision to swear-in the Fadnavis-led government was “unconstitutional”, and demanded that the governor be directed to invite the three parties to form the government instead.

The arguments before the court revolved around the demand for a floor test within 24 hours on the one hand, and the assertion that the governor’s decisions are not open to the court’s scrutiny on the other.

ThePrint recounts the judicial precedents in similar scenarios, which could guide the Supreme Court in the case of Maharashtra.

Also read: BJP’s overnight coup didn’t happen overnight at all, and Sharad Pawar likely knew about it

Constitutional immunity for governor’s orders

Rohatgi essentially sought to buy time in the court. While he argued that a floor test was inevitable, he asserted that the governor’s actions are not open to judicial review.

He cited Article 361 of the Constitution, which provides “protection” to the President, governors and ‘Rajpramukhs’ (governors of certain provinces and states before 1956).

Article 361(1) states that these functionaries “shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties”.

Rohatgi therefore demanded that a notice be issued in the matter, instead of an order directing an urgent floor test.

Immunity isn’t absolute

Courts have, in the past, held that despite Article 361, courts can still look into the actions of these functionaries on the grounds that the action is “mala fide or based on wholly extraneous and irrelevant grounds”.

For instance, a five-judge Constitution bench of the court had, in January 2006, held that the immunity under Article 361 “does not, however, take away the power of the court to examine the validity of the action including on the ground of mala fides”.

“A mala fide act is wholly outside the scope of the power and has no existence in the eyes of law,” it had asserted.

In 2016, in the Nabam Rebia case, the court had examined the governor’s discretionary power in the context of the constitutional crisis that arose in Arunachal Pradesh. Even then, the court had ruled that the governor’s discretion to call parties for forming the government or the act of giving 15 days’ time to prove a majority were judicially reviewable.

Demand for floor test

Both Sibal and Singhvi pointed out that the NCP had removed Ajit Pawar from his post as legislative party leader, and asserted that the best way to resolve the crisis was through a floor test.

They relied on the judgment in the 1994 S.R. Bommai case, where the court had set aside then-Karnataka Governor P. Venkatasubbaiah’s decision to deny then-CM S.R. Bommai the chance to prove his majority on the floor of the house.

Bommai’s government was dismissed in April 1989, following which President’s Rule was imposed under Article 356. The dismissal was on the grounds that Bommai had lost majority after large-scale defections engineered by several party leaders.

The Supreme Court, however, concluded that the President’s power to dismiss a state government is not absolute and that the dissolution of the legislative assembly should happen only where it is necessary.

“All canons of propriety were thrown to the wind and the undue haste made by the governor clearly smacked of mala fides,” the court had said.

Also read: Ajit Pawar, the ambitious nephew with a short fuse who remained in Sharad Pawar’s shadow

Reminiscent of Karnataka 2018

Singhvi also recounted the Supreme Court order in the case relating to the formation of government in Karnataka last year, to aid his argument demanding a floor test.

The results of the 2018 Karnataka assembly elections led to a hung assembly, with the BJP emerging as the single largest party with 104 seats, falling just short of a majority in the 225-member assembly.

Soon after, then-governor Vajubhai Vala invited the BJP to form the government in the state and administered the oath of office to B.S. Yediyurappa, despite the Congress and Janata Dal (Secular) forging a post-poll alliance and staking a claim to form the government.

This prompted the Congress and JD(S) to move the apex court, leading up to a rare midnight hearing by the court on 16-17 May 2018.

After a three-and-a-half-hour hearing, the court had ordered Yediyurappa to produce the letter submitted by him to the governor before the court.

However, during the next hearing, the court noted that this letter did not contain names of MLAs who had pledged support for him. It merely asserted that he had majority support in the house.

In this backdrop, it ordered a floor test in the Karnataka assembly the next day, as against the governor’s order granting 15 days.

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  1. In Amence a supreme court juge even elected by the President, is not influenced, The judge is elected for life. In India SC judg has to retire and worry about post retirement posting. His independence is restricted by his dream. What a government.

  2. Even if the honourable SC finds Maha governor’s action flawed, there is no way to rescind it. The Court can pass strictures against governor and expedite the floor test giving direction about due process to be followed.

  3. Article 361 rests on the premise that the President and the Governors, as the ultimate custodians of the Constitution within their jurisdictions, will act in accordance with both its letter and its spirit. 2. During the 1995 Assembly election in Maharashtra, someone asked Mrs P C Alexander how her husband would act in the event of a fractured verdict. I don’t understand politics, she replied. However, I have implicit faith that he will do the right thing.

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