At its emergency sitting on Sunday (November 24), the Supreme Court gave the government time until 10.30 am on Monday (November 25) to produce:
(i) the letter written by Maharashtra Governor Bhagat Singh Koshyari recommending the revocation of President’s Rule and inviting Devendra Fadnavis to form the government, and
(ii) the letter that Fadnavis submitted to the Governor to demonstrate that he has majority support among the MLAs.
Ever since the dramatic events of Saturday morning, when the revocation of President’s Rule was notified and Koshyari swore in Fadnavis and Ajit Pawar of the NCP as chief minister and deputy chief minister of Maharashtra, there has been controversy over these issues.
In addition, the Congress has demanded to know the details of the Cabinet meeting, its time and attendees, which recommended to the President that President’s Rule should be revoked.
To revoke President’s Rule, the government has used a special Section in the Union government’s Transaction of Business Rules, which allows for revocation of President’s Rule without Cabinet approval if the Prime Minister “deems it necessary”.
What is this rule, known as ‘Rule 12’?
Rule 12 of the Government of India (Transaction of Business) Rules, 1961, allows the Prime Minister to depart from laid down norms at his discretion.
Titled “Departure from Rules”, Rule 12 says, “The Prime Minister may, in case or classes of cases permit or condone a departure from these rules, to the extent he deems necessary.”
The Cabinet can subsequently give post-facto approval for any decision taken under Rule 12.
Under what circumstances is Rule 12 used?
Rule 12 is usually not used to arrive at major decisions by the government. However, it has been used in matters such as withdrawal of an office memorandum or signing of MoUs in the past.
The last big decision taken through the invocation of Rule 12 was re-organisation of the state of Jammu and Kashmir into the Union Territories of Jammu and Kashmir, and Ladakh on October 31.
The proclamations issued by the President that day, dividing various districts between the two Union Territories, were issued under Rule 12.
The Cabinet gave post-facto approval to the same on November 20.
So, what happened in the case of Maharashtra?
Sources said that once Governor Koshyari had been informed that the BJP had the numbers to form a coalition government with the NCP, and after he had verified the claim, Raj Bhavan worked through Friday night to prepare the necessary recommendation for the revocation of President’s Rule.
At 5.47 am on Saturday, the notification revoking President’s Rule was published in the government gazette. This indicated that the notification was actually signed by the President at some point earlier than that time.
At 7.50 am, the new chief minister and deputy chief minister were sworn in.
Who in the government knew what was going on?
The invocation of Rule 12 would appear to indicate that even top leaders in the BJP were not aware of the impending move. Many top ministers were, in fact, out of Delhi, and were not available for a Cabinet meeting.
Defence Minister Rajnath Singh was in Lucknow after returning from Singapore. Road Transport and Highways Minister Nitin Gadkari had gone to Nagpur after addressing a rally in Ranchi. Both Rajnath and Gadkari are also members of the BJP Parliamentary Board.
Asked about the revocation of President’s Rule without Cabinet approval, Union Law Minister Prasad said on Saturday: “All decisions have been taken after due process of law. There is a provision for ex-post-facto approval of the Cabinet, and the Prime Minister has special powers. Everything is in order.”
And what about the letter from Fadnavis to the Governor that the Supreme Court has asked for?
Prasad maintained that Ajit Pawar, being the leader of the NCP Legislature Party in Maharashtra, had the legitimate right to align with any party.
“It is very clear that Devendra Fadnavis is the leader of the BJP legislative party and Ajit Pawar is the leader of the NCP legislative party in Maharashtra. That is why it is perfectly legitimate for the Governor to call the parties which claim they have the majority,” Prasad said.
On Saturday evening, the NCP stripped Pawar of the post of Legislature Party leader. What the government tells the Supreme Court remains to be seen.