SC To Pass Orders On Maharashtra Floor Test Tomorrow

The Supreme Court on Monday reserved orders on the petition filed by Shiv Sena, Nationalist Congress Party and Congress against the decision of Maharashtra Governor to invite Devendra Fadnavis to form government in Maharashtra.

The bench comprising Justices N V Ramana, Ashok Bhushan and Sanjiv Khanna will pronounce orders tomorrow at 10.30 AM on whether to advance the floor test for proving majority of the Fadnavis government.

Yesterday, after a special Sunday sitting, the Court had called for the correspondences between Fadnavis and Maharashtra Governor Bhagat Singh Koshyari to be produced today at 10.30 AM.

The Solicitor General Tushar Mehta started by saying that he has produced both the letters - the one presented by Devendra Fadnavis to Governor staking claim for government formation and the other sent by Governor inviting him to form government.

The SG said that in the letter submitted by NCP leader Ajit Pawar to Governor on November 22, he had pledged support of entire 54 MLAs of Nationalist Congress Party. The letter mentioned that Pawar was the NCP legislative party head.

The SG then read out the letter sent by Governor to Fadnavis, which acknowledged that he had support of 170 MLAs including 54 NCP legislators. 

"The Governor acted on the basis of materials before him. The Court cannot question his exercise of discretion", SG Mehta said. He had clarified in the beginning that he was appearing for the Secretary to the Governor, as Governor cannot be called as a party in a judicial proceeding.

The Governor cannot hold a "roving enquiry" at that stage, SG submitted. 

"This is not a case of horse trading, but a case of one entire stable going the other way", SG said during the argument, alluding to Shiv Sena.

SG refers to Fadnavis's letter, which says he didn't have numbers initially when he was invited first, but formed majority with Ajit Pawar's support later. This letter cites letter of support by @AjitPawarSpeaks #MahaPoliticalTwist #MaharashtraGovtFormation

— Live Law (@LiveLawIndia) November 25, 2019

Next, Senior Advocate Mukul Rohatgi made submissions for the incumbent Chief Minister Devendra Fadnavis. He drew a distinction from the 2018 Karnataka assembly case.  Here, the Governor gave opportunity to all the parties. After all of them failed, President's rule was imposed. Then Fadnavis got support from NCP, attested by its legislative party chief Ajit Pawar. The Governor took a decision based on this.

 "The attack on Governor is completely unfounded. Governor in his letter has asked for proving the majority. Given the fact that there is no alternative, should this Court act in appellate jurisdiction and say that it should not be 10 days but 3 days. Governor has absolute discretion in choosing a person. Floor test is imperative. It can happen at various points of time. It is the discretion of the Speaker", Rohatgi argued.

The Court cannot issue interim directions to Governor, after he exercised discretion on prima facie satisfaction based on materials, Rohatgi stressed.

Rohatgi : The attack on Governor is completely unfounded. Governor has absolute discretion in choosing a person. When to hold the floor test is also the discretion of the governor.#MahaPoliticalTwist #MaharashtraCrisis

— Live Law (@LiveLawIndia) November 25, 2019

Maninder Singh next made submissions for Ajit Pawar. Singh asserted that Pawar acted in his capacity as legislative party chief of NCP. 

"I am the NCP", Singh said on behalf of Ajit Pawar.

When Rohatgi and Mehta sought for more time and opposed the Court's interference at the present stage, Senior Advocate Kapil Sibal, appearing for Shiv Sena, interjected. He said that the whole exercise of revocation of President's rule at 5:47 AM and the secretive swearing in of CM was "mala-fide".

Sibal said that he has produced affidavit sworn by 154 MLAs, which reject the stand taken by Pawar.

Sibal replies that there was mala fides behind the whole exercise of revocation of President's rule. "What was the emergency to revoke President's rule at 5.17 am and swear in CM at 8 am. There is no reason to shown for such dire urgency" Sibal submits @KapilSibal #MahaSurprise

— Live Law (@LiveLawIndia) November 25, 2019

Appearing for NCP, Senior Advocate Dr AM Singhvi attacked the credibility of the letter produced by the SG. He stated that the letter was merely about 54 MLAs electing Ajit Pawar as the legislative party chief of NCP. The letter had no mention of even a single MLA supporting BJP.

"This is perjury. This is fraud on democracy", Singhvi submitted.

Rohatgi then intervened to object the perjury argument. 

Singhvi replied that he raised the perjury argument to "shock the conscience" of the Court and that he did not want it to be on record.

"There have been instances where court directed test to be conducted in 24/48 hrs to preserve purity of democracy", Singhvi said pressing for an immediate floor test.

"When both sides are saying ok to a floor test, why should the Court wait for affidavits with replies", Singhvi asked. He also mentioned that Pawar has been removed as the chief of NCP legislative party.

Singhvi says that BJP has been "too clever by half". The letter nowhere says that 54 MLAs support BJP. The letter is about 54 MLAs electing Pawar as legislative party chief.
"This is perjury", Singhvi adds @DrAMSinghvi #MahaPoliticalTwist #MahaSurprise

— Live Law (@LiveLawIndia) November 25, 2019

Background

Following an urgent Sunday hearing on the legality of Maharashtra Government formation, the Supreme Court had sought the production before it the letter presented by BJP leader Devendra Fadnavis to the Maharashtra Governor claiming majority to form government with the support of dissident NCP MLAs under Ajit Pawar.

The Court also sought from the Solicitor General the production of the letter sent by Governor to Devendra Fadnavis inviting him to form government.  

The bench comprising Justices N V Ramana, Ashok Bhushan and Sanjiv Khanna ordered on Sunday in the petition filed jointly by Shiv Sena, Nationalist Congress Party and Congress as follows :

"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 a.m. when the matter will be taken up, so that appropriate order will be passed."

The Court had issued notice on the plea to Maharashtra Government, Chief Minister Devendra Fadnavis and Deputy CM Ajit Pawar.

The order was passed after an hour long hearing of Senior Advocate Kapil Sibal(for Shiv Sena), Senior Advocate Dr A M Singhvi (for NCP), Senior Advocate Mukul Rohatgi (for BJP) and Solicitor General Tushar Mehta.

The combine of Congress- NCP-Shiv Sena filed the petition on Saturday night challenging the decision of Maharashtra Governor to invite BJP to form government in Maharashtra, which was placed under President's rule on November 12 in view of the political stalemate.

Shiv Sena, Congress and NCP claim that they formed a post-poll alliance named "Maha Vikas Aghadi" having 154 members in the 288 member house and had announced Uddhav Thackarey as the CM on Friday night. However, in a surprising move, BJP leader Devendra Fadnavis was sworn in as the Chief Minister today morning, after the President's rule was revoked during the wee hours of Saturday.

As per the petition, the BJP has not placed any objective material before the Governor for showing majority. No demonstration either by letters of support or by parading of MLAs has been done by the BJP. The BJP clearly falls short of the halfway mark of 144. In any event the BJP cannot get the support of majority through legal constitutional means in the face of the anti-defection provisions of the Tenth Schedule.

The petitioners seek a declaration from a Court that Governor's decision to invite Devendra Fadnavis to form the Government as "unconstitutional, arbitrary, illegal, void-ab-initio, and violative of Article 14 of Constitution of India".

Further, the petitioners request the Court to direct the Governor to invite their alliance to form government under the leadership of Uddhav Thackarey.

The petitioners are also praying for an immediate floor test within twenty-four hours so as to "avoid further horse trading and illegal maneuvers". The Governor Bhagat Singh Koshyari has given the Fadnavis government time till November 30 to prove majority in the house.