In a repeat of the legal tussle for formation of the government in Karnataka in 2018, the Supreme Court is once again called on to look into whether the Maharashtra Governor, Bhagat Singh Koshyari, relied on “correct material” to allow Devendra Fadnavis to stake claim to form the government.
In 2018, the Congress party and JD(S) knocked on then CJI Dipak Misra’s doors at midnight after Governor Vajubhai Vala scheduled the swearing in of B S Yediyurappa as the Karnataka CM and appointed BJP legislator K G Bopaiah as pro-tem Speaker instead of Congress MLA R V Deshpande, who was the seniormost legislator. As per convention, the senior-most legislator is appointed as pro-tem Speaker to conduct the floor test.
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.
Discretionary powers limited
Although the decisions made by the office of the Governor enjoy immunity from judicial review, the Supreme Court has in a series of verdicts defined the contours of the discretionary powers of a Governor. The court has held that the discretionary power of a Governor is very limited and even in that limited area, the exercise of power cannot be arbitrary or fanciful and must be in good faith and bound by convention.
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.
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.