Maharashtra Governor's Decision Based On Fadnavis's Letter Showing Support Of 170 MLAs : SG, Rohatgi Tell SC

The Supreme Court bench comprising Justices N V Ramana, Ashok Bhushan and Sanjiv Khanna on Monday reserved orders on the petition filed by Shiv Sena, NCP and Congress against the decision of Governor to install BJP leader Devendra Fadnavis-led government in Maharashtra.

A short summary of the arguments of Solicitor General Tushar Mehta and Senior Advocate Mukul Rohatgi is given below :

"I have a copy of the communication of the Governor but I wish to make submissions on the facts of the matter first", began SG Tushar Mehta.

"The governor invited all three parties to form the government. The President's Rule was imposed when all seemed unable to do so", he advanced.

Submitting the letters received by the Governor from the erstwhile NCP Legislative Party Leader Ajit Pawar as well as independent members, he continued, "Pawar's letter (forwarded to the governor on November 22) carries 54 signatures, extending full support to the BJP...the Governor's decision is based on these materials. He did not need to conduct a roving, fishing inquiry. There was no reason to not believe Pawar..."

Reading out the Governor's decision, the SG stressed that the Governor appreciated CM Devendra Fadnavis having the support of 170 MLAs in total, making a reference to Fadnavis's communication averring that he did have the majority initially when he was invited to form the government but the 54 NCP MLAs are now behind him. Pawar's letter, on the other hand, asserted that he is the leader of the NCP legislative party and that he hold this post with the support of the MLAs, and that he wishes to back the BJP in its bid to form the government which he believes to be more stable and hence, better for the public.

Finally, Mr. Mehta prayed for 2-3 days' more time to file a reply. "When the parties and politicians are changing stands, how can the Governor see what might happen in the future?", he asked.

Next, Senior Advocate Mukul Rohatgi commenced his arguments on behalf of the Chief Minister- "My pre-poll ally left me so President's rule was invoked. Then I got support from the NCP and so I was sworn in! One Pawar is supporting with me, the other has come to court. That is their family feud which doesn't concern me...I was shown a letter signed by 54 MLAs and based on that, we approached the governor. It was never alleged that the signatures are forged...the governor has gone by the single largest party having 170 MLAs...This is in no way like Karnataka..."

"The issue is whether the CM enjoys majority today on the floor of the House. That is where the majority is decided, not in the governor's house...", observed Justice Sanjiv Khanna.

"Now the Pro Tem Speaker has to be appointed, the MLAs have to be sworn in, the Speaker shall be elected and the floor test will take place. I am only responding to the attack on the governor...the governor was fairly operating in exercise of his discretion. Everybody was given a chance. He has absolute discretion to choose a person. He is immune from any judicial review. Nothing remains in the matter now", replied Mr. Rohatgi. That the court is not sitting in appellate jurisdiction over the governor was his case.

"Yesterday, Dr. Singhvi said they have 45 MLAs. But I have met Pawar. I have been shown the list of MLAs supporting him...As to how the governor could act the way he did, I believe the governor acted reasonably, on the basis of the materials before him"

"In all the other cases also, the parties were agreeable to the floor test. But this court had had to stipulate the time frame within which it shall proceed", noted Justice Khanna.

"Here, the question is not of horse-trading but the whole stable going over to the opposite side. To pass an order in these circumstances inspired by earlier orders would have serious repercussions in the future...the Sarkaria Commission report also needs to be examined...", responded the SG.

"This is not the case for an ad interim direction. No order may be issued to the quasi-judicial authority that is the governor", agreed Mr. Rohatgi. Indicating the procedure of the Assembly, he suggested that the court could urge the Governor to hold the floor test within reasonable time, ultimately leaving it at his discretion. The court may not direct the floor test for tomorrow, was his stand.

It was submitted that the legal question as to whether the governor is amenable to judicial review is still pending the court's consideration.

"I am the NCP! There was nothing to show otherwise that day! As the party leader, I have the authority to take calls on such issues...there is no reason to doubt the genuineness or the admissibility of these letters (bearing the signatures). There is No material to disbelieve the same. The list is factually and legally correct! The governor acted in his right discretion", asserted Senior Counsel Maninder Singh, for Pawar.