Maharashtra Govt Formation: Governor's lightning decision to appoint Fadnavis, Ajit Pawar raises questions about neutrality of post

  • The decision of Governor should not be seemingly illegal or arbitrary otherwise court have authority to struck down these decisions declaring them as brazen disregard of the Constitution

  • The assessment of the strength of the ministry is not a matter of private opinion of any individual, be he the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House

  • Such private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal mala fides

In a dramatic turn of events, the Maharashtra Governor on Saturday morning invited BJP to form government after revoking President's Rule in state. Devendra Fadanvis of BJP and Ajit Pawar of NCP were sworn-in as the Chief Minister and Deputy Chief Minister respectively, which stunned everyone. On Sunday, the Supreme Court, hearing a petition filed by the Shiv Sena-NCP-Congress combine against the appointments of Fadnavis and Pawar, said that the final order will be pronouned on Monday morning and told Solicitor-General Tushar Mehta to produce the letters submitted by Chief Minister Devendra Fadnavis to Maharashtra Governor Bharat Koshyari, claiming support of the MLAs and thereby staking claim to form the government.

Ajit had claimed that he has requisite number of MLAs with him so that he can effect a split or merger from original NCP. However, the contention has been totally denied by leaders of Maha Vikahs Aghadi(Shivsena-NCP-Congress). The leaders of Congress-NCP-Shiv Sena alliance, in their petition, claimed that they have clear majority in House and despite this fact the Governor did not invite them to form the government. They contended that the Shiv Sena had emerged as the second-largest party, followed by the NCP and the Congress, the alliance of these parties has the numbers to stake claim to form the government. The Governor of Maharashtra has "installed" a "minority BJP government" and the parties are moving the Supreme Court against these "arbitrary and malafide actions" of the Governor.

 Maharashtra Govt Formation: Governors lightning decision to appoint Fadnavis, Ajit Pawar raises questions about neutrality of post

File image of Maharashtra Governor Bhagat Singh Koshyari with Devendra Fadnavis. PTI

In the midst of political turmoil, it is pertinent to enquire whether the decision taken by Governor of Maharashtra is in accordance with Constitution and norms of rule of law and equality. In the numerous judgments and Schedule 10 of the Constitution of India it has been settled law that while exercising discretion, Governor must keep in mind the constitutional norms and conventions as guiding principle. In the celebrated case of Rameshwar Prasad versus Union of India, it was held that the discretionary powers of Governors are not out of purview of judicial review.

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The decision of Governor should not be seemingly illegal or arbitrary otherwise court have authority to struck down these decisions declaring them as brazen disregard of the Constitution. Since the Shiv Sena, NCP and Congress declared their alliance, and they comprise 162 out of 288 seats including eight 8 Independents, hence prima facie they are prime contenders for government formation.

On 12 November, the Governor recommended President's Rule in Maharashtra, after Shiv Sena failed to prove majority within the deadline. Sena had earlier approached the Supreme Court alleging that the Governor granted only 24 hours time to show majority. After the petition was filed, President's Rule was imposed in the state. However, on Friday NCP chief Sharad Pawar told media that the new government will be led by Uddhav Thackeray, an official announcement is likely to be made on Saturday after final round of meetings between the three stakeholders.

Before they could announce their alliance, the fate of the Maharashtra Assembly was already decided. In these circumstances the decision taken by Governor raises serious questions over assumed neutrality of the post. In the last few years, the post of Governor has been hurled with allegations of working under partisan motives and working for the agenda of government at the Centre.

As in the case of Rameshwar Prasad versus Union of India, [(2006) 2 SCC 1], it has held that at the stage of formation of government the test to be adopted by the Governor is the 'prima facie' test. If the political party and/or the alliance is prima facie able to show to the Hon'ble Governor that it has the support of the requisite majority, then the Hon'ble Governor has no choice but to invite the said party/alliance which has demonstrated with prima facie material that it has the majority to form the Government.

For this whoever claims majority will have to objectively satisfy the governor that he enjoys requisite majority. The court further stated that the only agenda in the Assembly would be to have a composite floor-test between the contending parties in order to see which out of the two contesting claimants of Chief Ministership has a majority in the House.

In the present case, in any stretch of imagination, the majority could not be demonstrated by the Bharatiya Janata Party even if the prima facie standard is applied. In the recent Karnataka Assembly case titled Dr G. Parameshwara and Anr versus Union of India, which to a large extent was identical to this case, a petition was filed by the Congress-JDS combine challenging the Governor's decision of inviting BS Yediyurrapa to form the government, the Supreme Court ordered a floor test to be conducted within a period of 24 hours. The Maharashtra Governor's decision to give seven-day's time to Fadanvis to prove majority in this light is not constitutionally acceptable.

In this context the Sarkaria Commision recommendations are very relevant. Sarkarira Commission recommended the Governor to follow following steps while inviting a party or alliance to form government:

  • An alliance of parties that was formed prior to the elections;
  • The largest single party staking a claim to form the government with the support of others, including "Independents";
  • A post-electoral coalition of parties, with all the partners in the coalition joining the government;
  • A post-electoral alliance of parties, with some of the parties in the alliance forming a government and the remaining parties, including "Independents" supporting the government from outside.

As per recommendation 3, Shiv Sena, NCP and Congress had formed an alliance post-election hence they deserved to be invited by the governor to form government. Further, Sarkaria Commissions observation which has been found favorable ground in all cases related to such matter is as follows — the proper course for testing the strength of the ministry is holding the test on the floor of the House. That alone is the constitutionally ordained forum for seeking openly and objectively the claims and counter-claims in that behalf.

The assessment of the strength of the ministry is not a matter of private opinion of any individual, be he the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Hence, when such demonstration is possible, it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President. Such private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal mala fides.

Unfortunately, in the present case the Governor had not taken all caution before inviting a party to form government and hence the Supreme Court must order a floor test within least possible reasonable time by declaring the decision of governor manifestly arbitrary and against the principles of rule of law.

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Updated Date: Nov 24, 2019 15:50:16 IST