Like Karnataka tussle, SC to examine again: Did Governor rely on correct material?

As in the Karnataka case, the petitioners also alleged that the Governor overlooked a post-poll alliance and administered the oath to the BJP’s chief ministerial candidate. In Karnataka, the Congress and JD(S) had announced a post-poll alliance though the Governor invited the BJP, the single largest party, to form the government.

In the Karnataka case, senior advocate Abhishek Singhvi, who appeared for Congress, hinged his case on whether the Governor wrongly relied on Yediyurappa’s letter claiming to have 111 MLAs (BJP has 104) staking claim to form the government. However, Singhvi did not produce the letter and the court did not stay the floor test that was scheduled for the next day. The court asked Yediyurappa to produce his letter to the Governor after an unprecedented three-and-a-half-hour marathon hearing that took place in the early hours of May 17, 2018.

The SC noted in the next hearing, after Yediyurappa was sworn in as chief minister, that the letter only conveyed Yediyurappa’s assertion of having majority to stake claim, and not numbers or signatures of the MLAs. The court then ordered a floor test the very next day, virtually setting aside the Governor’s order granting the government 15 days to prove its majority on the floor of the House.

Read | What Supreme Court said on Gov’s role in earlier rulings

On the same lines, Singhvi, appearing for the Congress and NCP, questioned the Governor’s decision to rely on Fadnavis’s letter. Both Singhvi and senior advocate Kapil Sibal, who appeared for the Shiv Sena, argued that the Governor’s decision was “unconstitutional”.

Since Fadnavis has already been sworn in, the court agreed to look into the merits of the Governor’s decision. On Sunday, the Supreme Court asked Solicitor General Tushar Mehta to produce the letters by Governor Koshyari recommending revocation of President’s rule in the state and inviting Devendra Fadnavis to form the government. The court also sought the letter Fadnavis submitted to the Governor showing he has the majority.

In both cases, former Attorney General and senior advocate Mukul Rohatgi, appearing for BJP MLAs, who he refused to name during the hearing, argued before the court that constitutionally the Governor’s actions were not subject to judicial review. Citing Article 361 of the Constitution, Rohatgi argued that any act done in exercise and performance of the powers and duties of the office of the President and Governor were immune from scrutiny by courts. However, over the years, the Supreme Court has interpreted this provision liberally and examined actions of the Governor’s exercise of discretionary powers.