The BJP may have raised questions over the validity of the swearing-in of Chief Minister Uddhav Thackeray and his council of ministers, but legal experts hold the view that there was nothing unlawful about it.
Further, while the BJP has challenged the appointment of a new pro-tem speaker after Uddhav was sworn-in and the convening of the Assembly session, sources said Governor Bhagat Singh Koshyari had in fact consulted state Advocate General Ashutosh Kumbhakoni before taking these decisions.
On Saturday, proceedings of the two-day special Assembly session began amid uproar, with former chief minister Devendra Fadnavis questioning the procedure in which the oath to office was administered and the session was convened. With the BJP staging a walk out, the government sailed through the trust vote.
Later, BJP-backed Independent MLA Mahesh Baldi submitted a petition to the Governor questioning the constitutional validity of the oath administered and the convening special session. Sources in the Governor’s office said that Koshyari is expected to reject the petition.
In his first Cabinet meeting after taking oath as CM on November 28, Uddhav had decided to advance the floor test to November 30. The government’s initial plan was to move the confidence motion on December 3. Sources said that during the meeting, it was also decided to recommend that the pro-tem speaker be changed before the key test.
On November 26, when Fadnavis-Ajit Pawar government was still in power, the Governor had appointed BJP’s Kalidas Kolambkar as the pro-tem speaker. But on November 29, following the recommendation of the new council of ministers, Koshyari issued orders replacing him with NCP’s Dilip Walse-Patil. Sources said the Koshyari was initially reluctant to issue fresh orders, but did so after seeking Kumbhakoni’s counsel.
Even legal luminaries opined that there was nothing unlawful about the oath administered or the change of the pro-tem Speaker.
While BJP’s contention is that by invoking national and political leaders and reformers, Uddhav and his ministers hadn’t adhered to the form of oath stipulated in the Third Schedule of the Constitution, the government side has said that the “substance of the oath was not altered and had been as per the constitutional format”.
Former state advocate general Shreehari Aney said, “It is the content of oath that is important. That should be as per the format laid down in the Constitution. Adding something before or after the oath is not unlawful as long as the substance of the oath is unaltered.”
Aney, who was the state AG for a period when the Fadnavis government was in power, however, added: “Practice of invoking gods, national leaders, reformers while administering the oath of office can be termed immature as it detracts from the importance of the oath. But it doesn’t flout constitutional requirements.” Ravi Kadam, another former advocate general, echoed the same.
Former Justice (retd) P B Sawant said, “I watched the oath-taking ceremony. The oath that was administered to the ministers was as per the Constitution.”
A senior official, who has worked in the Governor’s office in the past, agreed. “There is nothing unconstitutional about a minister taking the name of any person who is revered by the people as long as he reads the given text of the oath as supplied to him in his entirety. Such revered names have been taken by ministers on previous occasions too. Then nobody had objected.”
Former Rajya Sabha secretary-general Shumsher K Sheriff, meanwhile, said, “Ultimately, it is the responsibility of the chair, the functionary administering the oath, in this case the Governor. Once Governor takes it as read, and the secretary to the Governor has attested that the oath has been administered, and the gazette notification has come out, then it is no longer an issue, it cannot be legally challenged.”
Aney also said that decision to change the pro-tem Speaker was the sole prerogative of the Governor. “The fact that he has rescinded his earlier decision and gone with the new Cabinet’s recommendation would imply that it had not been taken against his wishes. He is not answerable to anyone.” Both Kadam and Justice Sawant agreed.
Anant Kalse, former principle secretary of the state legislature, meanwhile, said that the “since the Governor had not prorogued the special sitting, the House was very much in session”.