After much deliberation, the Congress and the NCP, along with their new ally, the Shiv Sena, formed a government in Maharashtra. One of the principal architects of their alliance, senior lawyer and Congress MP Kapil Sibal, spoke with Ashhar Khan on the issue:
You were the lawyer for the Shiv Sena in the Supreme Court. What was your stand in court?
Our stand in court was consistent with precedents. The governor has discretion as a matter of law to call the leader of the single-largest party after any election. In Maharashtra, any party which had more than 144 MLAs could form a government. Unfortunately, no party had that figure, but the BJP being the single-largest party with 105 seats, was asked first itself and Devendra Fadnavis said no — he did not have the numbers. Thereafter, the Shiv Sena was asked whether they wanted three days’ time, and when it was not granted, Sharad Pawar’s NCP was asked. They wanted 24 hours but it was not granted. In this context, we moved the Supreme Court, which very kindly agreed to hear us on a Sunday morning. We impressed upon the Supreme Court that it’s important for Mr Fadnavis to prove his majority, and if he claims to have a majority, there is no reason that 15 days should have been given by the governor. He must prove his majority consistent with past precedents and there are several precedents in the past like Uttarakhand and Karnataka where within 24 hours through a court order the leader had to prove his majority on the floor of the House. The lawyers representing Mr Fadnavis and Ajit Pawar opposed this. What is surprising is that they went to the governor claiming that they had the majority. That is why they were sworn in. But in court they were opposing this. All this they were opposing because if they had a majority they would have not hesitated in proving the majority in 24 hours. This was a clear giveaway that they did not have the majority. The Supreme Court with past precedents asked to first give them a bit of time because when the petition was moved they had no notice — so a notice was given. All this is consistent with the principles of natural justice. After that the court said that a majority had to be proved in 24 hours. Now when this happened, the BJP realised that there was not enough time for them to do a Karnataka in Maharashtra. Thus, thereafter Mr Fadnavis resigned. His was perhaps one of the shortest tenures as chief minister.
According to you, what was the problem? After all the BJP was the single-largest party. That’s why the governor invited them a second time.
There is a backgrounder to this. All this happened because the pre-poll alliance of the BJP and the Shiv Sena was not able to resolve their differences. The BJP had made some pre-poll promises to the Shiv Sena which they reneged on, so the Shiv Sena started talking to other parties like the NCP and the Congress. Now the ideologies of the Shiv Sena and our pre-poll alliance of the Congress and the NCP were different. In order to form a government there had to be a Common Minimum Program that had to be sorted out and that took a bit of time. But the three parties decided that they were going to form a government and the Shiv Sena was going to stake a claim. This is when the “national emergency” happened. When the Prime Minister and the home minister realised that the three parties are going to stake a claim and form a government next morning there was suddenly a national emergency. The President was woken up at the wee hours and made to revoke President’s rule. By 8 am Mr Fadnavis was sworn in with the alleged support of Mr Ajit Pawar who allegedly claimed that he had the support of all the members of the NCP. Now the question is what was the reason that President’s rule was revoked at 5:47 am. In that context, the governor gave 15 days’ time to Mr Fadnavis which we later came to know when the petition was filed. We were well aware that this was a manufactured majority. All of us knew that this was being done for an ulterior motive and it is unfortunate that the higher ups were involved in the political machinations of this government. It is also unfortunate that the governor was doing the bidding of the home minister and the Prime Minister because the governor would have known that on the previous evening at 7 pm a press conference was held in which the NCP said that a claim will be made next morning by the Shiv Sena and that it would be leading the coalition. The governor, who is the eyes and ears of the home minister and the Prime Minister, would have informed them that this is what is happening. The home minister would have asked the governor to immediately send a report in favour of Mr Fadnavis so that President’s rule could have been revoked. These are political machinations taking place that were highly amoral, controversial and most unfortunately involving the highest offices of the State. The Prime Minister obviously was party to all this as he waived off Rule 22.
A lot has been said on the role of the governor. Do you think the President of India also acted in haste?
It will not be proper for me to comment on the decision of the President to revoke President’s rule in Maharashtra, because in a constitutional democracy like ours, the President acts on the aid and advice of the council of ministers. Here the aid and advice of the council of ministers was also not taken as the Prime Minister waived Rule 22. So the responsibility is on the shoulders of the Prime Minister.
As far as the role of the governor is concerned?
The conduct of the governor I think has been consistent with the conduct of all governors appointed by the BJP, which is entirely unconstitutional. This is the common feature of all governors, be it of Uttarakhand, Karnataka, Arunachal Pradesh, Goa, etc. Their governors are aligned to the BJP even though they hold a constitutional office and they will do the bidding of the BJP, which is most unfortunate.
Several people have now started saying that the post of the governor should be done away with. Your comments?
That would require a constitutional Amendment. That’s not an easy thing to do. The government at the moment is busy with other amendments. Also, it is convenient to have a governor who will do your bidding.
The BJP calls your coalition government in the state as a betrayal of the mandate. Your’s and the Shiv Sena’s ideologies are poles apart. How do you explain this?
I have a few answers to this question. Number one: Who is the BJP to talk about the betrayal of the mandate? Please ask them how they formed an alliance with the PDP and formed a government in Jammu and Kashmir. What is common between the ideology of Hindutva and the ideology of the PDP apart from lust for power. In a bid to form the government, they were willing to compromise on their ideology. So it is inappropriate for them to ask us that question. The second answer is that Maharashtra is one of the most important states in the country. It is the financial capital of the country. In the election, crores have been spent by the Election Commission. Political parties have also spent money. The people of the state deserve a government. You are right: The ideology of the Shiv Sena is different from both the ideology of the NCP and the Congress. Therefore, we were convinced that any government that the people of the state are entitled to should be a stable government and therefore it took time to resolve issues and based on a Common Minimum Program committed themselves to give a government. Just because the Shiv Sena and the BJP could not form a government, it doesn’t mean that other efforts should not be made. If the Common Minimum Program had not happened, there would not have been a government. So the parties came forward and according to a mutually agreed program went ahead and formed the government.
Weren’t you surprised when Mr Ajit Pawar was sworn in with Mr Fadnavis?
We all knew that Mr Ajit Pawar did not have the support of the NCP MLAs. Everybody knew this. It was exposed in court because Mr Ajit Pawar had a list which had signatures of the MLAs, but not for supporting the BJP. On his own letterhead, he attached that list. Now we are sure and confident that our government will last the full five years.