Maharashtra: After dark night, Constitution Day

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Fadnavis hands his resignation to Governor Koshyari, in Mumbai on Tuesday. (PTI)

Late at night, Ajit Pawar reached the Silver Oaks residence of his uncle and NCP chief Sharad Pawar. Earlier in the day, senior NCP leaders Chhagan Bhujbal, Dilip Walse Patil and Sunil Tatkare held talks with Ajit Pawar at his house. Members of the Pawar family, including Supriya Sule’s husband Sadanand Sule, were also said to have met Ajit Pawar, asking him to return to the fold. Although he was removed as leader of the NCP legislature party after he joined hands with Fadnavis, he was not expelled from the party.

Last Saturday morning, Governor Koshyari had administered the oath of office to Fadnavis and Ajit Pawar in dramatic fashion after President’s Rule was revoked in the early hours. The BJP had moved in the dead of the night following Sharad Pawar’s announcement late Friday evening that a consensus had been reached on Shiv Sena chief Uddhav Thackeray as Chief Minister of a Sena-NCP-Congress government.

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In the Maharashtra House of 288 members, the BJP has 105, Shiv Sena 56, NCP 54 and Congress 44 MLAs. The Sena parted ways with the BJP after insisting on rotation of the CM post.

Ahead of the Supreme Court ruling Tuesday on their petitions, the Sena-NCP-Congress combine paraded their MLAs and those in support at the Grand Hyatt hotel in Mumbai Monday evening, claiming they had 162 legislators on their side. It was evident that Sharad Pawar and other NCP leaders had succeeded in bringing back most MLAs who had left with Ajit Pawar. This, and the resignation of Ajit Pawar following the Supreme Court order, sealed the fate of the Fadnavis government, although BJP state president Chandrakant Patil, soon after the ruling, claimed that the government was confident of winning the floor test.

While ordering the floor test, the bench of Justices N V Ramana, Ashok Bhushan and Sanjiv Khanna underlined that “at this interim stage… 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”.

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Explaining their intervention, the bench said “we may note that in the present case, oath has not been administered to the elected members even though a month has elapsed since the declaration of election results” and that “in such emergent facts and circumstances, to curtail unlawful practices such as horse trading, to avoid uncertainty and to effectuate smooth running of democracy by ensuring a stable Government, we are of the considered opinion that it is necessary to pass certain interim directions in this case.”

Sharad Pawar addressing a rally amid heavy rain in Satara became the defining image of the Assembly polls. (File)

It said “in this context, it is necessary and expedient to conduct the floor test as soon as possible to determine whether the Chief Minister, who was administered the oath of office, has the support of the majority or not.” It said a “Pro-­tem Speaker shall be solely appointed for the aforesaid agenda immediately; all the elected members shall take oath on 27.11.2019, which exercise should be completed before 5:00 pm” and “immediately thereafter, the Pro­-tem Speaker shall conduct the floor test in order to ascertain whether” Fadnavis “has the majority, and these proceedings shall be conducted in accordance with law”.

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The judges said “the floor test will not be conducted by secret ballot” and “the proceedings have to be live telecast, and appropriate arrangements are to be made to ensure the same”.

The order drew on past judgments in similar cases and said “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”.

It said this was also the view taken by a nine-judge bench in the S R Bommai case and “the opinion expressed by the Sarkaria Commission, Rajmannar Committee and the unanimous opinion expressed by the Committee of five Governors constituted by the President of India”.

Ajit Pawar.

The bench noted that the case “pertains to one such situation, wherein” it “is called upon to adjudicate and maintain democratic values and facilitate the fostering of the citizens’ right of good governance”. It said the “issues of maintainability, extent of judicial review and validity of the Governor’s satisfaction… can be adjudicated at an appropriate time”.

On the contention by the respondents including Fadnavis that proceedings of the House cannot be called into question in any court as this is barred under Article 212 of the Constitution, the bench said the provision will have “no application” in the given circumstances.

“Clause (2) (of Article 212) 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. Sub­-Article (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 bench ruled.