Mumbai swearing-in: To test spirit, Supreme Court asks for letters today

Putting off a decision on the Shiv Sena-NCP-Congress’s plea for a floor test in Maharashtra “within 24 hours”, the Supreme Court on Sunday asked the Centre to produce by 10.30 am Monday the letters of Governor Bhagat Singh Koshyari inviting Devendra Fadnavis to form the government, and of the BJP leader claiming the support of the required number of MLAs to stake claim.

A bench of Justices N V Ramana, Ashok Bhushan and Sanjiv Khanna said it would pass orders on the petitioners’ demand for an urgent floor test only after perusing these letters.

“We have taken note of all the arguments, particularly the argument that the Governor’s decision dated 23-11-2019 inviting the Respondent No.3 to form a Government on 23-11-2019 is unconstitutional… As adjudication of the issues and also the interim prayers sought by the petitioners to conduct floor test within 24 hours has to be considered after perusing the order of the Governor as well as the letters submitted by Mr Devendra Fadnavis – Respondent No.3, even though none appeared for the State Government, we request Mr Tushar Mehta to produce those two letters by tomorrow morning at 10.30 am, when the matter will be taken up, so that appropriate order will be passed,” the bench said.

The bench said the Sena-NCP-Congress’s plea, seeking a direction to the Governor to invite them to form the government, would not be considered at present.

The court was hearing a plea filed by the Sena-NCP-Congress, challenging the Governor’s decision to recommend revocation of President’s Rule and invite Fadnavis to form the government.

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Appearing for the Sena, Senior Advocate Kapil Sibal said the BJP-Sena pre-poll alliance had broken down, and hence the question involved was of a post-poll alliance. He referred to the chain of events — from the declaration of Assembly poll results, to the break-up of the BJP-Sena coalition, and the Sena-NCP-Congress alliance holding a press conference on the evening of November 22, wherein it was announced that Uddhav Thackeray would be the Chief Minister candidate.

He said what happened after that was “bizarre”. “It was not just bizarre, but it also appears that he (Governor) was acting under direct instructions,” said Sibal. The Governor’s decision to recommend the lifting of President’s Rule and the subsequent developments smack of bias, are mala fide and contrary to all norms set by the court, he said.

Sibal said if Fadnavis believes he has the confidence of the House, then he must be told prove it on the floor of the House on Sunday itself. He said the BJP wanted to delay the floor test as “they want to do something else during this time” and urged the court not to allow more time. “If they can’t prove majority, we will,” he said.

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Justice Bhushan asked if the details of the MLAs’ letter of support were known. Sibal replied that there was nothing in the public domain.

Senior Advocate Abhishek Manu Singhvi, appearing for the NCP and Congress, said the Governor had the obligation to satisfy himself on the basis of written documents, whether they had the signatures of MLAs, and had to physically verify these.

Recalling the November 22 press conference after the Sena-NCP-Congress meeting, Singhvi asked how the Governor could have invited Fadnavis to form the government the next morning. “Could he not have said, you physically parade, I will also look at the other side,” he said.

He referred to the resolution passed by the NCP on Saturday, replacing Ajit Pawar as the legislature party leader, and said it had been signed by 41 of the party’s 54 MLAs. Singhvi said an English translation of the resolution, which was in Marathi, had been submitted to the Governor on Sunday.

“How on earth (Ajit Pawar) could be Deputy CM after 41 of the MLAs had said they don’t support him,” asked Singhvi, adding, “is this not murder of democracy”.

Both Sibal and Singhvi cited the Supreme Court’s 2018 ruling in the case of Karnataka, and said BJP leader B S Yediyurappa had been given only 48 hours to prove majority.

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Recalling the court’s judgment in the S R Bommai case, Singhvi said a floor test is the ultimate test to prove majority and sought to impress upon the court the need to hold this “today or tomorrow”. He also referred to the court’s decision in the Uttarakhand case.

Solicitor General Tushar Mehta, who had been served a copy of the petition, said he was not representing the Governor or the state, and added that the question was whether the petitioners should have first moved the High Court.

Appearing for some BJP MLAs, Senior Advocate Mukul Rohatgi submitted that in the recent matter of disqualified Karnataka MLAs, the bench headed by Justice Ramana had expressed displeasure at the legislators directly approaching the SC, and said they should have first moved the HC.

Justice Khanna agreed that the point had come up in the Karnataka MLAs’ issue, and said it was raised by Sibal then. Sibal was quick to add that his objection “was overruled”.

Rohatgi said the Governor’s decision to call a political formation to form the government is part of his discretionary power under Article 361 which is immune to judicial review.

Justice Ramana said the issue of who the Governor can invite is already a settled law.

Referring to the petition, Rohatgi said one of the prayers was to direct the Governor to invite a certain party to form government. “This is unheard of,” he said.

Justice Ramana replied, apparently in a lighter vein, “Mr Rohtagi, in this court, sky is the limit for asking anything. Tomorrow, somebody may even come and say, ‘make me Prime Minister’.”

Rohatgi said the modalities of government formation should be left to the House. “The House must respect the Court and the Court must respect the House. Both the organs of the State have to respect each other,” he said, and asked how would it be if a House were to pass a resolution that courts should dispose of all cases in two years.

Amid laughter in the courtroom, Justice Ramana replied with a smile, “we won’t be surprised even if it (such a resolution) is passed”.

Rohatgi questioned the maintainability of the petition and expressed displeasure over the hearing on Sunday. “In my opinion, there was no need for a Sunday hearing. There is already a government in place, there is no prohibitory order, nobody is being executed,” he said, questioning the urgency.

Justice Bhushan replied that it was the discretion of the Chief Justice of India when to hear it.

Rohatgi said the parties concerned should first be served notices and heard. “There is no tearing hurry… they did not form the government till now, they did not lift a little finger,” he said, adding that this was the circumstance under which the Governor invited Fadnavis to form the government.

When the bench asked Mehta who was appearing for the Maharashtra government, Fadnavis and Ajit Pawar, the Solicitor General said he was appearing only for the Centre and had got no instructions from the state. The bench noted in its order that though the petitioners have served all the parties through e-mail, no one appeared for the state, chief minister and deputy chief minister.

In the 288-member Assembly, the BJP is the single largest party with 105 MLAs, followed by Shiv Sena (56), NCP (54) and Congress (44).