Maharashtra : SC Seeks To See Tomorrow Letter Of Support Relied On By Governor [Updated With Order]

[Updated with order]

Following an urgent Sunday hearing on the legality of Maharashtra Government formation, the Supreme Court sough 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 letters are to be produced tomorrow at 10.30 AM.

The bench comprising Justices N V Ramana, Ashok Bhushan and Sanjiv Khanna ordered 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 has 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 petitioners submitted that the Governor took the decision without forming any prima facie satisfaction of majority. The act of revoking President's rule is mala fide and contrary to norms issued by the Court from time to time. The sudden revocation of President's rule and hasty swearing-in were done to scuttle the formation of government by the post-poll alliance of Shiv Sena- Congress- NCP based on their decision announced on Friday night, submitted the petitioenrs.

Referring to the SC precedents in Jagadambika Pal case, and also the cases relating to Jharkhand, Karnataka and Uttarakhand assemblies, the petitioners argued that floor test is the best method to show majority. They asserted that they can show majority any time and prayed for immediate ordering of floor test.

The petitioners also asked how could the Fadnavis government be sustained on the support of NCP, when 41 MLAs (out of 56) have openly stated that they do not back Ajit Pawar, who was made the Deputy CM yesterday. Ajit Pawar was removed as the legislative party leader yesterday, the petitioners pointed out.

Singhvi : 41 people signed in the afternoon saying they do not support Ajit Pawar @AjitPawarSpeaks . He did not have the support of NCP. Democracy functions on numbers and majority. It is not possible for the Governor to have exercised this function.#MaharashtraGovtFormation

— Live Law (@LiveLawIndia) November 24, 2019

Senior Advocate Rohatgi, appearing for BJP MLAs, submitted that the petition was not maintainable. Political parties have no fundamental rights and they cannot invoke Article 32 of the Constitution to directly approach the Supreme Court.  The Constitution has conferred the Governor with discretionary powers on deciding who should be invited to form government. That discretion is not open to judicial review. Governor has constitutional immunity from judicial review as per Article 361.

Rohatgi said that he has never seen such a petition in his life. 

"They were sleeping for three weeks and suddenly they've come up to say that decide the case today ? No research, no annexures, nothing", Rohatgi said.  Referring to the prayers in the petition, Rohatgi contended that the Court cannot direct the Governor to invite the petitioners to form government.

Rohatgi also requested the Court to afford opportunity to the parties to submit replies to the petition within two-three days.

Roahtgi - My real question is only one - whether this Court should or can direct the Governor to conduct floor test ?#MaharashtraGovtFormation

— Live Law (@LiveLawIndia) November 24, 2019

Solicitor General Tushar Mehta submitted that he was appearing for the Central Government, and added that he had no instructions from the Government or the Governor in the matter. He added that he could call for the records from the Governor and Maharashtra Government, if the Court so desired.

Accordingly, the Court dictated the order.

During the course of hearing, the bench expressed that it was not going into the issue of revocation of President's rule.

The combine of Congress- NCP-Shiv Sena filed the petition yesterday 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.

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