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Shiv Sena Vs. Union of India [26/11/19]

Section

Shiv Sena and Ors. Vs. Union of India and Ors

[Civil No. 1393 of 2019]

1. There is no gainsaying that the boundaries between the
jurisdiction of Courts and Parliamentary independence have been contested for a
long time.1 However, there is a need and requirement for recognizing
institutional comity and separation of powers so as to tailor judicial
interference in the democratic processes only as a last resort. This case
pertains to one such situation, wherein this Court is called upon to adjudicate
and maintain democratic values and facilitate the fostering of the citizens’
right of good governance.

2. Before we pass any orders, we need to make a brief reference to the factual aspects giving rise to the petition herein. It was well known that
there existed a prepoll alliance between the 1 Erskine
May, Parliamentary Practice, 25th edition, 321 (2019 Bharatiya
Janata Party [for short ‘BJP’] and the Shiv Sena, who contested
the Fourteenth Maharashtra Legislative Assembly elections jointly. On 24.10.2019,
the results for the aforesaid elections were declared and no single party had
the requisite majority in the House. On 09.11.2019, the Governor called upon
the BJP to indicate its willingness to form the Government, being the single
largest party with 105 seats. However, the BJP declined to form the Government on 10.11.2019, as the alliance with the
Shiv Sena allegedly broke down.

3. Subsequently, the Governor invited the Shiv Sena to form the
Government. In this regard, the Shiv Sena is said to have shown its willingness
to stake a claim to form the Government, claiming to have support of the
majority. However, the aforesaid endeavor was not fruitful either. Thereafter,
the Governor’s effort to seek the Nationalist Congress Party’s [for short ‘NCP’]
willingness to stake a claim to form the Government was also not successful. Ultimately, the Governor recommended President’s Rule on 12.11.2019, which was imposed by a Presidential 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 in
discussion to form a coalition government during this period, and accordingly,
a press conference is supposed to have been held on 22.11.2019 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23.11.2019, the President’s Rule was revoked in exercise of powers conferred by
clause (2) of Article 356 of the Constitution. Thereafter, the Governor, by
letter dated 23.11.2019 invited Respondent No. 3 to form the Government. The
oath of office and secrecy was administered accordingly to Respondent Nos. 3
and 4 at around 8.00 a.m. on 23.11.2019 at Raj Bhavan, Mumbai.

6. Aggrieved by the Governor’s action in calling upon Respondent
No. 3 to form the Government, the Petitioners have approached this Court under
Article 32 of the Constitution on 23.11.2019 with the following prayers:

“a. Pass an appropriate writ/order/direction declaring that
action/order of the Hon’ble Governor dated 23.11.2019 inviting Shri Devendra
Fadnavis to form the Government on 23.11.2019 as unconstitutional, arbitrary, illegal,
voidabinitio, and violative of Article 14 of Constitution of India; and
accordingly quash the same;

b. Pass an appropriate writ/order/direction to the Hon’ble Governor to invite the alliance of Maha Vikas Aghadi comprising of the Shiv Sena, Indian
National Congress and the Nationalist Congress Party which has the support of
more than 144 MLAs to form the Government under the leadership of Shri. Uddhav
Thackeray;”

7. At this juncture, it is necessary to extract some of the prayers for interim directions sought by the Petitioners in the present petition:”a.
Issue appropriate directions in terms of summoning a special session of the Fourteenth
Maharashtra Legislative Assembly with the only agenda of administering oath to
the MLAs, immediately followed by the holding of a floor test on 24.11.2019;

d. Issue appropriate directions in terms of the order dated
4.02.1998 passed by this Hon’ble Court in Jagadambika Pal (supra) as well as Harish Chandra Singh Rawat (supra) directing that the proceedings of the House be video recorded and a copy of the video recording be placed on record of this Hon’ble Court;

e. Issue appropriate directions appointing a protem Speaker to
preside over the onduct of the floor test;”

8. Further, the Petitioners have filed an affidavit indicating the urgency and requirement for hearing the matter on 23.11.2019 itself. Accordingly, the
Hon’ble Chief Justice was pleased to place the matter before this Bench and the
matter was heard on 24.11.2019 (Sunday) at 11:30 a.m. After hearing the
parties, this Court passed the following order: “Issue notice. It was brought
to our notice by the learned Senior counsels appearing for the petitioners that
they have served the respondents through e.mail. However, there is no representation
for Respondent Nos.2, 3 and 4. Mr. Tushar Mehta, learned Solicitor General appearing
for the Union of India is willing to produce the relevant record, if necessary,
from the Governor also.

Mr. Mukul Rohatgi, learned Senior counsel who is appearing for
some BJP MLAs and two independent MLAs, who are not parties to this Writ
Petition, opposed the entertaining of the Writ Petition as well as passing of
any order. We have taken note of all the arguments, particularly the
argument that the Governor’s decision dated 23112019 inviting the Respondent No.3 to form a Government on 23112019 is
unconstitutional. With regard to the second prayer as at `b’, we are not going to consider the same at
present. As adjudication of the issues and also the interim prayers sought by
the petitioners to conduct floor test within 24 hours has to be considered
after perusing the order of the Governor as well as the letters submitted by Mr.
Devendra Fadnavis Respondent No.3, even though none appeared for the State Government, we request Mr. Tushar Mehta
to produce those two letters by tomorrow orning at 10.30 a.m. when the matter
will be taken up, so that appropriate order will be passed.”

9. When the matter was taken up for hearing on 25.11.2019, the Solicitor General of India, produced the letters in compliance of the order of 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. Kapil Sibal
submitted that prima facie, the action of the Governor revoking
President’s Rule at 5:47 a.m. and administering the oath of office at around
8:00 a.m. reeks of mala fide. The learned Senior Counsel further submitted
that Respondent No. 4 was never authorized to form the alliance with Respondent
No. 3. Therefore, Respondent No. 3 must prove his majority on the floor of the House.
For this purpose, as per established norms, the senior most member must be
called for ssuming the role of protem Speaker,
after which there must be an open ballot and the same should be captured in a
video recording so as to ensure transparency.

12. Agreeing with the aforementioned submissions, learned Senior Counsel
Dr. A.M Singhvi appearing for Petitioner Nos. 2 and 3 submitted that the
Governor turned a blind eye by accepting the proposal of formation of the
Government put forth by Respondent No. 3. The letter presented to the Governor,
although allegedly signed by 54 elected members of the NCP, was unaddressed and
did not have a covering letter or any other statement promising their alliance
to the BJP. In the aforesaid context, the sole reliance on the aforesaid letter
to prove majority was not prudent. Moreover, when both sides are agreeable to
the conduction of a floor test, and an order directing the conduction of the
same is not prejudicial to anyone, then there is no reason to defer the same.

13. On the other hand, learned Solicitor General submitted that the satisfaction
of the Governor was based on the material placed before him, wherein it was
indicated that Respondent No. 3 enjoyed the support of 105 elected members of
the BJP, 54 elected members of the NCP and 11 independent elected members (170
in total). The Governor had, in his own wisdom, relied upon the letters of the
Respondent Nos. 3 and 4 and he had no reason to disbelieve the same. The Governor is not obligated to conduct
a roving enquiry into the same. The learned Solicitor General also contended
that this Court cannot monitor the proceedings of the House as per the
provision of Article 212 of the Constitution.

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

15. Lastly, learned Senior Counsel Mr. Maninder Singh appearing for Respondent No. 4 vehemently contended that the jurisdiction under Article 32 of the
Constitution cannot be invoked in the present matter and the Governor’s
independence should be respected.

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

17. Having heard the submissions of the learned counsel on the issues of maintainability, extent of judicial review and validity of the Governor’s
satisfaction, we are of the opinion that they can be adjudicated at an
appropriate time. There is no doubt that the contentions have to be answered,
as the petitioners have raised questions concerning important constitutional
issues touching upon the democratic bulwark of our nation. However, at this interim stage, we may note that 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.

18. At the outset, we need to emphasize that recently, in the case of Shrimanth Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative
Assembly, Writ Petition (C) No.992 of 2019, this Court
had emphasized the requirement of imbibing constitutional morality by the
constitutional functionaries. Undemocratic and illegal practices within the political
arena should be curtailed.

19. In this context, this Court in Union
of India v. Shri Harish Chandra Singh Rawat, (2016) SCC OnLine SC 618, held as follows: “8. This Court,
being the sentinel on the qui vive of the Constitution is under the obligation
to see that the democracy prevails and not gets hollowed by individuals. The directions
which have been given on the last occasion, was singularly for the purpose of strengthening the
democratic values and the constitutional norms. The collective trust in the
legislature is founded on the bedrock of the constitutional trust.”

20. 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. A similar view was expounded by B.P.
Jeevan Reddy, J., in the celebrated nineJudge Bench decision of this Court in S.R.
Bommai v. Union of India , (1994) 3 SCC 1, wherein he
held as follows: ” 395.

The High Court, in our opinion, erred in holding that the floor
test is not obligatory. If only one keeps in mind the democratic principle underlying the Constitution and the fact that it is the Legislative Assembly that represents the will of the people and not the Governor the
position would be clear beyond any doubt.There could be no question of the Governor
making an assessment of his own.

The loss of confidence of the House was an objective fact, which could have been demonstrated, one way or the other, on the floor of
the House. In our opinion, wherever a doubt arises whether the Council of
Ministers has lost the confidence of the House, the only way of testing
it is on the floor of the House except in an extraordinary situation
where because of allpervasive violence, the Governor comes to the
conclusion and records the same in his report – that for the reasons
mentioned by him, a free vote is not possible in the House.”

(emphasis supplied).

21. This was also 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. In the aforementioned judgment, B.P. Jeevan Reddy, J., quoted the
observations of the Committee of Five Governors with approval, as below:” 393. The five
Governors unanimously recommended that “the test of confidence in the Ministry
should normally be left to a vote in the assembly Where the Governor is satisfied,
by whatever process or means, that the Ministry no longer enjoys majority support, he should ask
the Chief Minister to face the Assembly and prove his majority within the
shortest possible time A Chief Minister’s refusal to test his strength on the floor
of the Assembly can well be interpreted as prima facie proof of his no longer
enjoying confidence of the legislature.”

22. Ex facie, Article 212 of the Constitution, relied on by
the Respondents, would have no application as it relates to validity of proceedings
in the Legislature of a State that cannot be called in question in 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 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. SubArticle (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. 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 petitioner and the caveators,
directing that a special session of the Uttar Pradesh Assembly will be
summoned/ convened after two days on 26.02.1998 with the following directions:

(ii) 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.

(iii) It is pertinently emphasised that the proceedings in the
Assembly shall be totally peaceful and disturbance, if any, caused therein
would be viewed seriously.

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

2. The result is expected to be laid before us on 2721998 at
10.30 a.m. when this Bench assembles again.

3. Ancillary directions are that this order shall be treated to
be a notice to all the MLAs, leaving apart the notices the Governor/Secretariat is supposed to issue. In the interregnum,
no major decisions would be made by the functioning Government except attending
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 recording and taking notice of events that had taken place and few developments which were in the offing, as reported in the media, to observe
and direct as 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, we are satisfied that a strong prima facie case on
the averments made in the petition duly supported by affidavit, has been made
out to issue the following interim directions and we order accordingly:

(1) The session of the Jharkhand State Assembly has lready been
convened for 1032005 on which day the newly elected Members of the Legislative Assembly
shall be administered oath.We direct the session to continue and on 1132005 i.e.
the next day and on that day the vote of confidence to be put to test.

2) The only agenda in the Assembly on 1132005 would be to have a
floor test between the contending political alliances in order to see which of
the political parties or alliance has a majority in the House and hence a claim for Chief Ministership.

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

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

5) This order by the Court shall constitute notice of the meeting
of the Assembly for 1132005 and no separate notice would be required.

6) Till 1132005 there shall be no nomination in view of Article
333 of the Constitution and the floor test shall remain confined to the 81
elected members only.

(7) We direct the Chief Secretary and the Director General of
Police, State of Jharkhand to see that all the elected Members of the Legislative Assembly freely, safely and securely
attend the Assembly and no interference or hindrance is caused by anyone therein. Dr. A.M. Singhvi, learned Senior
Counsel appearing for the State of Jharkhand through the Chief Secretary and
the Director General of Police has very fairly assured the Court that even
otherwise it is the duty of the State and its high officials to take care to do
so and the direction made by the Court shall be complied with in letter and
spirit.” The aforesaid directions were interim in nature and were passed on the basis of averments made in the petition duly supported by
an affidavit. Writ petitions were directed to be listed on the date of hearing
fixed.

24. Ten years later, in Union of India v. Sh.
Harish Chandra Singh Rawat, (2016) SCC Online SC 442 , again an
interim order was passed after the special leave petitions were taken up for
hearing, though after concession which was made by Mr. Mukul Rohatgi, the then
Attorney General for India, that the Union of India has no objection, which the
Court had appreciated, to observe that the floor test should be conducted on a
special session of Uttarakhand Legislative Assembly to be summoned/convened in which
the only agenda would be the vote of confidence sought by the first respondent
and apart from the said agenda nothing will be discussed. Directions were
issued to the Chief Secretary and the Director General of Police, State of
Uttarakhand, to see that all qualified Members of the Legislative Assembly,
freely, safely and securely attend the Assembly and no hindrance is caused to them.
The floor test was to commence at 11:00 a.m. and was directed to be completed
by 1:00 p.m. There was another direction that the Confidence Motion having
been put, a division of the House shall take place and members inclined to vote
in favour of the Motion shall sit on one side/wing and those voting against the
Motion shall sit on the other side/wing. The entire proceedings were to be
videographed and video recording was directed to be placed before the Court for
being perused. The special leave petitions were directed to be listed thereafter.

25. InChandrakant Kavlekar v. Union of India ,
(2017) 3 SCC 758 , the challenge raised was to a press note and communication from
a leader of a party to the Governor of the State on the issue relating to
whether a particular party had misrepresented the facts. Observing that the
sensitive and contentious issue could be resolved by a simple direction
requiring holding of the floor test at the earliest. This would remove all
possible ambiguities and would result in giving the democratic process, the required
credibility. By order dated 14.03.2017, the Governor of the State of Goa was requested
to ensure that a floor test is held on 16.03.2017. Further, it would be the
only agenda for the day so as to determine whether the Chief Minister
administered the oath of office enjoys the support of the majority. The order
further highlights that the floor test should be held as early as possible.

6. Lastly, we would refer to G. Parmeshwara v.
Union of India ,(2018) 16 SCC 46, wherein identical directions were
issued in respect of formation of Government in the State of Karnataka to test
whether the 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 also not
elected, the following procedure was directed to be followed for conducting the
floor test:”8

(A) Protem Speaker shall be appointed for the aforesaid purpose
immediately.

(B) All the elected members shall take oath tomorrow (1952018) and
this exercise shall be completed before 4.00 p.m.

(C) The Protem Speaker shall conduct the floor test on 1952018 at
4.00 p.m. in order to ascertain the majority and it shall not be by secret
ballot and these proceedings shall be conducted in accordance with law.

D) Adequate and sufficient security arrangements shall be made and
Director General of Police, State of Karnataka will himself supervise the said arrangements
so that there is no lapse on this count whatsoever.” It was directed that the floor test would be conducted
immediately the next date, i.e., the date following the order.

27. 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. 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. 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. Since the elected members of
the Legislative Assembly are yet to take oath as specified in the III Schedule
of the Constitution, and the Speaker is also yet to be elected, we request the
Governor of the State of Maharashtra to ensure that a floor test be held on 27.11.2019.
The following procedure is to be followed for conducting the floor test:

a. Protem Speaker shall be solely appointed for the
aforesaid agenda immediately.

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

c. Immediately thereafter, the Protem Speaker shall
conduct the floor test in order to ascertain whether the Respondent No. 3 has the
majority, and these proceedings shall be conducted in accordance with law. The
floor test will not be conducted by secret ballot.

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

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

………………………………J.(N.V.
Ramana)

………………………………J.(Ashok
Bhushan)

………………………………J.(Sanjiv
Khanna)

NEW
DELHI;

November
26, 2019.

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