SHIV SENA AND ORS. versus UNION OF INDIA AND ORS. on 26 November 2019

O R D E R

1. There is no gainsaying that the boundaries between thejurisdiction of Courts and Parliamentary independence have beencontested for a long time.[1] However, there is a need and requirementGfor recognizing institutional comity and separation of powers so as totailor judicial interference in the democratic processes only as a lastresort. This case pertains to one such situation, wherein this Court iscalled upon to adjudicate and maintain democratic values and facilitatethe fostering of the citizens’ right of good governance.

H1 Erskine May, Parliamentary Practice, 25th edition, 321 (2019).

2. Before we pass any orders, we need to make a brief referenceto the factual aspects giving rise to the petition herein. It was well knownthat there existed a pre-poll alliance between the Bharatiya Janata Party[for short ‘BJP’] and the Shiv Sena, who contested the FourteenthMaharashtra Legislative Assembly elections jointly. On 24.10.2019, theresults for the aforesaid elections were declared and no single party hadthe requisite majority in the House. On 09.11.2019, the Governor calledupon the BJP to indicate its willingness to form the Government, beingthe single largest party with 105 seats. However, the BJP declined toform the Government on 10.11.2019, as the alliance with the Shiv Senaallegedly broke down.

3. Subsequently, the Governor invited the Shiv Sena to form theGovernment. In this regard, the Shiv Sena is said to have shown itswillingness to stake a claim to form the Government, claiming to havesupport of the majority. However, the aforesaid endeavor was not fruitfuleither. Thereafter, the Governor’s effort to seek the Nationalist CongressParty’s [for short ‘NCP’] willingness to stake a claim to form theGovernment was also not successful. Ultimately, the Governorrecommended President’s Rule on 12.11.2019, which was imposed by aPresidential Proclamation on the same day.

4. It is brought to our attention that the Petitioners, i.e., Shiv Sena,NCP and the Indian National Congress [for short ‘INC’] were indiscussion to form a coalition government during this period, andaccordingly, a press conference is supposed to have been held on22.11.2019 regarding the same.

5. It has been canvassed before us that at 5:47 a.m., on 23.11.2019,the President’s Rule was revoked in exercise of powers conferred byclause (2) of Article 356 of the Constitution. Thereafter, the Governor,by letter dated 23.11.2019 invited Respondent No. 3 to form theGovernment. The oath of office and secrecy was administeredaccordingly to Respondent Nos. 3 and 4 at around 8.00 a.m. on 23.11.2019at Raj Bhavan, Mumbai.

6. Aggrieved by the Governor’s action in calling upon RespondentNo. 3 to form the Government, the Petitioners have approached thisCourt under Article 32 of the Constitution on 23.11.2019 with the followingprayers:

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A“a.Pass an appropriate writ/order/direction declaring that actionorder of the Hon’ble Governor dated 23.11.2019 inviting ShriDevendra Fadnavis to form the Government on 23.11.2019as unconstitutional, arbitrary, illegal, void-ab-initio, andviolative of Article 14 of Constitution of India; and accordinglyquash the same;B

b.Pass an appropriate writ/order/direction to the Hon’bleGovernor to invite the alliance of Maha Vikas Aghadicomprising of the Shiv Sena, Indian National Congress andthe Nationalist Congress Party which has the support of morethan 144 MLAs to form the Government under the leadershipCof Shri. Uddhav Thackeray; …”

7. At this juncture, it is necessary to extract some of the prayersfor interim directions sought by the Petitioners in the present petition:

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“a.Issue appropriate directions in terms of summoning a specialsession of the Fourteenth Maharashtra Legislative Assemblywith the only agenda of administering oath to the MLAs,immediately followed by the holding of a floor test on24.11.2019; E…

d.Issue appropriate directions in terms of the order dated24.02.1998 passed by this Hon’ble Court in JagadambikaPal (supra) as well as Harish Chandra Singh Rawat(supra) directing that the proceedings of the House be videoFrecorded and a copy of the video recording be placed onrecord of this Hon’ble Court; e.Issue appropriate directions appointing a pro-tem Speakerto preside over the conduct of the floor test;”

8. Further, the Petitioners have filed an affidavit indicating theGurgency and requirement for hearing the matter on 23.11.2019 itself.Accordingly, the Hon’ble Chief Justice was pleased to place the matterbefore this Bench and the matter was heard on 24.11.2019 (Sunday) at11:30 a.m. After hearing the parties, this Court passed the followingorder:

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“Issue notice.

It was brought to our notice by the learned Senior counselsappearing for the petitioners that they have served the respondentsthrough e.mail. However, there is no representation for RespondentNos.2, 3 and 4.

Mr. Tushar Mehta, learned Solicitor General appearing for theUnion of India is willing to produce the relevant record, if necessary,from the Governor also.

Mr. Mukul Rohatgi, learned Senior counsel who is appearing forsome BJP MLAs and two independent MLAs, who are not partiesto this Writ Petition, opposed the entertaining of the Writ Petitionas well as passing of any order.

We have taken note of all the arguments, particularly the argumentthat the Governor’s decision dated 23-11-2019 inviting theRespondent No.3 to form a Government on 23-11-2019 isunconstitutional. With regard to the second prayer as at ‘b’, weare not going to consider the same at present. As adjudication ofthe issues and also the interim prayers sought by the petitioners toconduct floor test within 24 hours has to be considered afterperusing the order of the Governor as well as the letters submittedby Mr. Devendra Fadnavis – Respondent No.3, even though noneappeared for the State Government, we request Mr. Tushar Mehtato produce those two letters by tomorrow morning at 10.30 a.m.when the matter will be taken up, so that appropriate order will bepassed.”

9. When the matter was taken up for hearing on 25.11.2019, theSolicitor General of India, produced the letters in compliance of the orderof this Court dated 24.11.2019.

10. Heard the learned counsel appearing for both sides.

11. The learned Senior Counsel for Petitioner No. 1, Mr. KapilSibal submitted that prima facie, the action of the Governor revokingPresident’s Rule at 5:47 a.m. and administering the oath of office ataround 8:00 a.m. reeks of mala fide. The learned Senior Counsel furthersubmitted that Respondent No. 4 was never authorized to form thealliance with Respondent No. 3. Therefore, Respondent No. 3 must A

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Aprove his majority on the floor of the House. For this purpose, as perestablished norms, the senior most member must be called for assumingthe role of pro-tem Speaker, after which there must be an open ballotand the same should be captured in a video recording so as to ensuretransparency.B12. Agreeing with the aforementioned submissions, learned Senior B12. Agreeing with the aforementioned submissions, learned SeniorCounsel Dr. A.M Singhvi appearing for Petitioner Nos. 2 and 3 submittedthat the Governor turned a blind eye by accepting the proposal offormation of the Government put forth by Respondent No. 3. The letterpresented to the Governor, although allegedly signed by 54 electedmembers of the NCP, was unaddressed and did not have a coveringCletter or any other statement promising their alliance to the BJP. In theaforesaid context, the sole reliance on the aforesaid letter to prove majoritywas not prudent. Moreover, when both sides are agreeable to theconduction of a floor test, and an order directing the conduction of thesame is not prejudicial to anyone, then there is no reason to defer theDsame.

13. On the other hand, learned Solicitor General submitted thatthe satisfaction of the Governor was based on the material placed beforehim, wherein it was indicated that Respondent No. 3 enjoyed the supportof 105 elected members of the BJP, 54 elected members of the NCPEand 11 independent elected members (170 in total). The Governor had,in his own wisdom, relied upon the letters of the Respondent Nos. 3 and4 and he had no reason to disbelieve the same. The Governor is notobligated to conduct a roving enquiry into the same. The learned SolicitorGeneral also contended that this Court cannot monitor the proceedingsof the House as per the provision of Article 212 of the Constitution.F

14. Adding to the aforesaid submissions, learned Senior CounselMr. Mukul Rohatgi appearing for Respondent No. 3 submitted thatalthough a floor test is imperative, this Court cannot sit in appeal overthe Governor’s order to set the dates for the floor test. It must be kept inmind that conducting a floor test is the discretion of the Speaker. In lightGof the above, no interim order can be passed in the aforesaid matter.

15. Lastly, learned Senior Counsel Mr. Maninder Singh appearingfor Respondent No. 4 vehemently contended that the jurisdiction underArticle 32 of the Constitution cannot be invoked in the present matterand the Governor’s independence should be respected.

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16. We may note that, while the learned Solicitor General andlearned Senior Counsel Mr. Mukul Rohatgi sought additional time to fileaffidavits in response, however we are of the opinion that the samemight not be necessary at this stage.

17. Having heard the submissions of the learned counsel on theissues of maintainability, extent of judicial review and validity of theGovernor’s satisfaction, we are of the opinion that they can be adjudicatedat an appropriate time. There is no doubt that the contentions have to beanswered, as the petitioners have raised questions concerning importantconstitutional issues touching upon the democratic bulwark of our nation.However, at this interim stage, we may note that it is imperative for thisCourt to be cognizant of the need to take into consideration the competingclaims of the parties, uphold the democratic values and fosterconstitutional morality.

18. At the outset, we need to emphasize that recently, in the caseof Shrimanth Balasaheb Patil v. Hon’ble Speaker, KarnatakaLegislative Assembly, Writ Petition (C) No. 992 of 2019, this Courthad emphasized the requirement of imbibing constitutional morality bythe constitutional functionaries. Undemocratic and illegal practices withinthe political arena should be curtailed.

19. In this context, this Court in Union of India v. Shri HarishChandra Singh Rawat, (2016) SCC OnLine SC 618, held as follows:

“8. … This Court, being the sentinel on the qui vive of theConstitution is under the obligation to see that the democracyprevails and not gets hollowed by individuals. The directions whichhave been given on the last occasion, was singularly for thepurpose of strengthening the democratic values and theconstitutional norms. The collective trust in the legislature isfounded on the bedrock of the constitutional trust…”

20. In a situation wherein, if the floor test is delayed, there is apossibility of horse trading, it becomes incumbent upon the Court to actto protect democratic values. An immediate floor test, in such a case,might be the most effective mechanism to do so. A similar view wasexpounded by B.P. Jeevan Reddy, J., in the celebrated nine-Judge Benchdecision of this Court in S.R. Bommai v. Union of India, (1994) 3SCC 1, wherein he held as follows:

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“395. The High Court, in our opinion, erred in holding that thefloor test is not obligatory. If only one keeps in mind thedemocratic principle underlying the Constitution and thefact that it is the Legislative Assembly that represents thewill of the people — and not the Governor — the positionwould be clear beyond any doubt….There could be no questionof the Governor making an assessment of his own. The loss ofconfidence of the House was an objective fact, which could havebeen demonstrated, one way or the other, on the floor of the House.In our opinion, wherever a doubt arises whether theCouncil of Ministers has lost the confidence of the House,the only way of testing it is on the floor of the House exceptin an extraordinary situation where because of all-pervasiveviolence, the Governor comes to the conclusion — and recordsthe same in his report — that for the reasons mentioned by him, afree vote is not possible in the House.”

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21. This was also the opinion expressed by the SarkariaCommission, Rajmannar Committee and the unanimous opinionexpressed by the Committee of five Governors constituted by thePresident of India. In the aforementioned judgment, B.P. Jeevan Reddy,EJ., quoted the observations of the Committee of Five Governors withapproval, as below:

“393.…The five Governors unanimously recommended that “thetest of confidence in the Ministry should normally be left to a votein the assembly … Where the Governor is satisfied, by whateverprocess or means, that the Ministry no longer enjoys majoritysupport, he should ask the Chief Minister to face the Assemblyand prove his majority within the shortest possible time… A ChiefMinister’s refusal to test his strength on the floor of the Assemblycan well be interpreted as prima facie proof of his no longer enjoyingconfidence of the legislature….”

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22. Ex facie, Article 212 of the Constitution, relied on by theRespondents, would have no application as it relates to validity ofproceedings in the Legislature of a State that cannot be called in questionin any court on the ground of any alleged irregularity of procedure. Clause(2) states that no officer or member of the legislature of a State, in H

whom powers are vested by or under the Constitution for regulating theprocedure, conduct of business or for maintaining order, in the Legislatureshall be subject to the jurisdiction of any court in respect of exercise ofthose powers by him. Sub-Article (2) has no application because no actof any officer or member of the Legislature of the State has been madethe subject matter of the present Petition before this Court. This Court,nearly two decades back, in Jagdambika Pal v. Union of India, (1999)9 SCC 95, had passed an order, after hearing counsel for the petitionerand the caveators, directing that a special session of the Uttar PradeshAssembly will be summoned/ convened after two days on 26.02.1998with the following directions:

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(ii) The only agenda in the Assembly would be to have a compositefloor test between the contending parties in order to see whichout of the two contesting claimants of Chief Ministership has amajority in the House.

(iii) It is pertinently emphasised that the proceedings in the Assemblyshall be totally peaceful and disturbance, if any, caused thereinwould be viewed seriously.

(iv) The result of the composite floor test would be announced bythe Speaker faithfully and truthfully.

2. The result is expected to be laid before us on 27-2-1998 at10.30 a.m. when this Bench assembles again.

3. Ancillary directions are that this order shall be treated to be anotice to all the MLAs, leaving apart the notices the Governor/Secretariat is supposed to issue. In the interregnum, no majordecisions would be made by the functioning Government exceptattending to routine matters, not much of any consequence.”

23. Six years later, in Anil Kumar Jha v. Union of India, (2005)3 SCC 150, similar directions were passed by this Court after recordingand taking notice of events that had taken place and few developmentswhich were in the offing, as reported in the media, to observe and directas follows:

“5. Though many a relief has been sought for in the writ petition,as also in the application for grant of ex parte stay, for the present, A

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we are satisfied that a strong prima facie case on the avermentsmade in the petition duly supported by affidavit, has been madeout to issue the following interim directions and we orderaccordingly:

(1) The session of the Jharkhand State Assembly has alreadyBbeen convened for 10-3-2005 on which day the newlyelected Members of the Legislative Assembly shall beadministered oath. We direct the session to continue andon 11-3-2005 i.e. the next day and on that day the voteof confidence to be put to test.

(2) The only agenda in the Assembly on 11-3-2005 would beto have a floor test between the contending politicalalliances in order to see which of the political parties oralliance has a majority in the House and hence a claimfor Chief Ministership.

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(3) It is emphasised that the proceedings in the Assemblyshall be totally peaceful, and disturbance, if any, causedtherein shall be viewed seriously.

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(4) The result of the floor test would be announced by thepro tem Speaker faithfully and truthfully.

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(5) This order by the Court shall constitute notice of themeeting of the Assembly for 11-3-2005 and no separatenotice would be required.

(6) Till 11-3-2005 there shall be no nomination in view ofArticle 333 of the Constitution and the floor test shallFremain confined to the 81 elected members only.

(7) We direct the Chief Secretary and the Director Generalof Police, State of Jharkhand to see that all the electedMembers of the Legislative Assembly freely, safely andsecurely attend the Assembly and no interference orGhindrance is caused by anyone therein. Dr. A.M. Singhvi,learned Senior Counsel appearing for the State ofJharkhand through the Chief Secretary and the DirectorGeneral of Police has very fairly assured the Court thateven otherwise it is the duty of the State and its high H

officials to take care to do so and the direction made bythe Court shall be complied with in letter and spirit.”

The aforesaid directions were interim in nature and were passedon the basis of averments made in the petition duly supported by anaffidavit. Writ petitions were directed to be listed on the date of hearingfixed.

24. Ten years later, in Union of India v. Sh. Harish ChandraSingh Rawat, (2016) SCC Online SC 442, again an interim orderwas passed after the special leave petitions were taken up for hearing,though after concession which was made by Mr. Mukul Rohatgi, thethen Attorney General for India, that the Union of India has no objection,which the Court had appreciated, to observe that the floor test should beconducted on a special session of Uttarakhand Legislative Assembly tobe summoned/convened in which the only agenda would be the vote ofconfidence sought by the first respondent and apart from the said agendanothing will be discussed. Directions were issued to the Chief Secretaryand the Director General of Police, State of Uttarakhand, to see that allqualified Members of the Legislative Assembly, freely, safely and securelyattend the Assembly and no hindrance is caused to them. The floor testwas to commence at 11:00 a.m. and was directed to be completed by1:00 p.m. There was another direction that the Confidence Motion havingbeen put, a division of the House shall take place and members inclinedto vote in favour of the Motion shall sit on one side/wing and thosevoting against the Motion shall sit on the other side/wing. The entireproceedings were to be video-graphed and video recording was directedto be placed before the Court for being perused. The special leavepetitions were directed to be listed thereafter.

25. In Chandrakant Kavlekar v. Union of India, (2017) 3 SCC758, the challenge raised was to a press note and communication froma leader of a party to the Governor of the State on the issue relating towhether a particular party had misrepresented the facts. Observing thatthe sensitive and contentious issue could be resolved by a simple directionrequiring holding of the floor test at the earliest. This would remove allpossible ambiguities and would result in giving the democratic process,the required credibility. By order dated 14.03.2017, the Governor of theState of Goa was requested to ensure that a floor test is held on16.03.2017. Further, it would be the only agenda for the day so as to AB

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Adetermine whether the Chief Minister administered the oath of officeenjoys the support of the majority. The order further highlights that thefloor test should be held as early as possible.

26. Lastly, we would refer to G. Parmeshwara v. Union of India,(2018) 16 SCC 46, wherein identical directions were issued in respectBof formation of Government in the State of Karnataka to test whetherthe Chief Minister so appointed enjoyed the majority support of the House.Noticing the fact that the elected members of the Legislative Assembly,as in the present case, were yet to take oath and the Speaker was alsonot elected, the following procedure was directed to be followed forconducting the floor test:C

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(A) Pro-tem Speaker shall be appointed for the aforesaid purposeimmediately.

(B) All the elected members shall take oath tomorrow (19-5-2018)Dand this exercise shall be completed before 4.00 p.m.

(C) The Pro-tem Speaker shall conduct the floor test on 19-5-2018 at 4.00 p.m. in order to ascertain the majority and it shall notbe by secret ballot and these proceedings shall be conducted inaccordance with law.

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(D) Adequate and sufficient security arrangements shall be madeand Director General of Police, State of Karnataka will himselfsupervise the said arrangements so that there is no lapse on thiscount whatsoever.”

It was directed that the floor test would be conducted immediatelyFthe next date, i.e., the date following the order.

27. We may note that in the present case, oath has not beenadministered to the elected members even though a month has elapsedsince the declaration of election results. In such emergent facts andcircumstances, to curtail unlawful practices such as horse trading, toGavoid uncertainty and to effectuate smooth running of democracy byensuring a stable Government, we are of the considered opinion that it isnecessary to pass certain interim directions in this case. In this context,it is necessary and expedient to conduct the floor test as soon as possibleto determine whether the Chief Minister, who was administered the oath H

of office, has the support of the majority or not. Since the elected membersof the Legislative Assembly are yet to take oath as specified in the IIISchedule of the Constitution, and the Speaker is also yet to be elected,we request the Governor of the State of Maharashtra to ensure that afloor test be held on 27.11.2019. The following procedure is to be followedfor conducting the floor test:

a.Pro-tem Speaker shall be solely appointed for the aforesaidagenda immediately.

b.All the elected members shall take oath on 27.11.2019, whichexercise should be completed before 5:00 p.m.

c.Immediately thereafter, the Pro-tem Speaker shall conductthe floor test in order to ascertain whether the RespondentNo. 3 has the majority, and these proceedings shall beconducted in accordance with law. The floor test will not beconducted by secret ballot.

d.The proceedings have to be live telecast, and appropriatearrangements are to be made to ensure the same.

28. Eight weeks time is granted to the learned counsel for therespondents to file their respective counter affidavits. Rejoinder affidavit,if any, is to be filed within four weeks thereafter. The matter to be listedafter twelve weeks.

Devika Gujral

Directions issued.

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