Floor test mandated for upholding democracy – SC [order attached]

SHIV SENA AND ORS.vs. UNION OF INDIA AND ORS., WRIT PETITION (CIVIL) NO. 1393 OF 2019. – 26 November 2019.

The bench encompassing Justice N.V. Ramana, Justicee Ashok Bhushan and Justice Sanjiv Khanna pronounced the Order pertaining to the radical Government formed in Maharashtra in accordance with the Governor’s letter dated 23.11.2019. On 24.10.2019, the results for the Fourteenth Maharashtra Legislative Assembly elections were declared and no single party had the requisite majority in the House. The Governor, on 09.11.2019 called upon the BJP to indicate its willingness to form the Government, being the single largest party with 105 seats. But it declined since the alliance with the Shiv Sena allegedly broke down. Later, the Governor invited the Shiv Sena to form the Government and it was declined for the same reason as what the BJP stated. Thereafter, the Governor approached the Nationalist Congress Party and it was also not successful. Subsequently, the Governor recommended President’s Rule on 12.11.2019, which was imposed by a Presidential Proclamation on the same day. In the meantime, the Petitioners, i.e., Shiv Sena, NCP, and the Indian National Congress were in discussion to form a coalition government during this period. On 23.11.2019, the President’s Rule was revoked and by letter dated 23.11.2019 invited Respondent No. 3, Shri Devendra Fadnavis to form the Government.

In a situation wherein, if the floor test is delayed, there is a possibility of horse trading, it becomes incumbent upon the Court to act to protect democratic values. An immediate floor test, in such a case, might be the most effective mechanism to do so.

Aggrieved by this, the petitioners approached the Hon’ble Supreme Court and prayed for passing an order to quash the letter dated 23.11.2019 by tagging it as unconstitutional, arbitrary void­-ab-initio, and violative of Article 14 of Constitution of India and to pass an appropriate order to the Hon’ble Governor to invite the alliance of Shiv Sena, Indian National Congress and the Nationalist Congress Party which has them to form the Government under the leadership of Shri.Uddhav Thackeray. It also sought for appropriate interim orders.Mr. Kapil Sibal and Dr. A.M Singhvi, learned senior counsels appeared on behalf of the petitioners and Mr. Tushar Mehta, learned Solicitor General, Mr. Mukul Rohatgi, and Mr. Maninder Singh, learned senior counsels appeared on behalf of the respondents.

Ex facie, Article 212 of  the Constitution, relied on by the Respondents, would have no application as it relates to validity of proceedings in the Legislature of a State that cannot be called in question in any court on the ground of any alleged irregularity of procedure. Clause (2) states that no officer or member of the legislature of a State, in whom powers are vested by or under the Constitution for regulating the procedure, conduct of business or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of exercise of those powers by him. Sub­Article (2) has no application because no act of any officer or member of the Legislature of the State has been made the subject matter of the present Petition before this Court.

The petitioners contended that Respondent No. 3 must prove his majority on the floor of the House since Respondent No. 4 was never authorized to form the alliance with Respondent No. 3. Transparency in doing the abovementioned was stressed. Further, it was argued that the sole reliance on the aforesaid letter to prove the majority was not prudent. Per contra, it was argued that the satisfaction of the Governor was based on the material placed before him and in his wisdom he relied upon the letters of the Respondent Nos. 3 and 4 and he had no reason to disbelieve the same. Moreover, it was contended that this Court cannot monitor the proceedings of the House as per the provision of Article 212 of the Constitution. It was further submitted that the jurisdiction under Article 32 of the Constitution cannot be invoked in the present matter and the Governor’s independence should be respected.

There is no doubt that the contentions have to be answered, as the petitioners have raised questions   concerning   important   constitutional   issues   touching upon  the  democratic  bulwark  of  our  nation.  However,  at  this interim stage, we may note that it is imperative for this Court to be cognizant of the need to take into consideration the competing claims of the parties, uphold the democratic values and foster constitutional morality.

The Hon’ble Supreme Court after deliberating on the above said arguments emphasized the decisions of the Court in Shrimanth Balasaheb Patil v. Hon’ble Speaker, Karnataka; Union of India v. Shri Harish Chandra Singh Rawat, Legislative Assembly; S.R. Bommai v. Union of India; Jagdambika Pal v. Union of India; Anil Kumar Jha v. Union of India; Union of India v. Sh. Harish Chandra Singh Rawat; Chandrakant Kavlekar v. Union of India; and G. Parmeshwara v. Union of India to uphold the democratic values enshrined in our constitution.

The Court then directed that the floor test would be conducted immediately the next date, i.e., the date following the order. The following is the pronounced order:

“We request the Governor of the State of Maharashtra to ensure that a floor test be held on 27.11.2019. The following procedure is to be followed for conducting the floor test:

1. Pro­tem Speaker shall be solely appointed for the aforesaid agenda immediately.

2. All the elected members shall take oath on 27.11.2019, which exercise should be completed before 5:00 p.m.

3. Immediately thereafter, the Pro­tem Speaker shall conduct the floor test in order to ascertain whether the Respondent No. 3 has the majority, and these proceedings shall be conducted in accordance with law.The floor test will not be conducted by secret ballot.

4. The proceedings have to be live telecast, and appropriate arrangements are to be made to ensure the same.

Eight weeks time is granted to the learned counsel for the respondents to file their respective counter affidavits. Rejoinder affidavit, if any, is to be filed within four weeks thereafter. The matter to be listed after twelve weeks.”

View/Download Order: Shiv Sena and Ors. vs. Union of India and Ors.,

– Jumanah Kader

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