New Delhi: The Supreme Court on Tuesday morning ordered the BJP’s Devendra Fadnavis to prove his government’s majority in a televised floor test “within 24 hours”. Stating that it is necessary to have a floor test to avoid horse trading, the apex court also asked Maharashtra governor Bhagat Singh Koshyari to appoint a pro-tem Speaker who should administer oath to the 288 newly elected members by then.

A bench comprising justices N.V. Ramana, Ashok Bhushan and Sanjiv Khanna said that voting in the Assembly shall not be on the basis of secret ballot, and ordered that the entire exercise be telecast live and completed by 5 pm Wednesday.

Ruling on a petition filed by the Congress-Shiv Sena-NCP alliance challenging the surprise government formation by the BJP in Maharashtra on November 23, the Supreme Court said, “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.”

The three-judge bench did not accept the contention of Mr Fadnavis, the BJP and the governor’s office that Article 212 of the Constitution impeded the court from interfering with the procedure for the conduct of Assembly proceedings, including election of Speaker.

“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”, the court said in its order, and added that at this interim stage, “...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.”

The Supreme Court will, at an “appropriate time”, examine the larger issues touching on the Constitution, including the extent of judicial review of the governor’s decisions to invite someone to form the government and the validity of the governor’s satisfaction in the entire exercise of government formation.

The Supreme Court’s order prompted the NCP’s Ajit Pawar, who had been sworn in as deputy chief minister along with Devandra Fadnavis as chief minister, to announce his resignation.

Soon after, Mr Fadnavis called a press conference to announce his resignation, signalling that he neither had the numbers nor could he muster them in the short duration of one day.  

In the wake of the resignations, the top court’s order has become infructuous. But since governor Koshyari has already appointed a pro-term Speaker, the later may go ahead and administer oath to the newly elected members at the special session of the Assembly called at 8 am on Wednesday.

The verdict is being seen as a boost for the Shiv Sena, NCP and Congress who had insisted on a floor test within 24 hours – a plea that was resisted both by Mr Fadnavis, the BJP and the governor’s office who wanted more time for “welding” the stable arrangement that had emerged on the intervening night of November 22 and 23.  

Speaking on Mr Fadnavis’ resignation and the implication of the top court’s order, senior counsel and constitutional expert K.V. Viswanathan said that the “stern and categoric nature of the order forced the resignation. Mr Fadnavis knew that he did not have the numbers and was also not confident of getting majority support within 24 hours.”

Describing the entire episode as “sad” and “unfortunate”, Mr Viswanathan said, “The whole episode — from the hurried, early morning swearing in (of Fadnavis on November 23) to the resignations — is a sad and forgettable episode in the annuls of India’s constitutional history.”

Mr Fadnavis was administered oath by governor Koshyari at 7.50 am on November 23 after a night-long operation which saw the lifting of President’s rule in Maharashtra at 5.47 am after the BJP leader staked claim to form government with the backing of 170 MLAs — 105 of the BJP, 54 of NCP and 11 Independents and others.

While ordering the floor test on November 27, the court relied on its earlier judgments, including one by a nine-judge bench on March 11, 1994, in the S.R. Bommai case in which Justice B.P. Jeevan Reddy had said, “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… 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.”

The court on Tuesday noted that the views expressed by the nine-jude bench were also the ones expressed by the Sarkaria Commission, Rajmannar Committee and the unanimous opinion expressed by the committee of five governors constituted by the President of India.

Referring to the top court’s recent judgment on the disqualification of 17 lawmakers belonging to Congress and JD(S) in Karnataka, the Supreme Court said on Tuesday that this court has emphasised the “requirement of imbibing the constitutional morality by the constitutional functionaries. Undemocratic and illegal practices within the political arena should be curtailed.”

Solicitor general Tushar Mehta had contended that governor Koshyari had acted in his wisdom, relying on the letters submitted by Mr Fadnavis and Ajit Pawar and was not expected to carry out a “roving inquiry” into the same.

He also said that the top court cannot monitor the proceedings of the state Assembly as per the provision of Article 212 of the Constitution.

 “Ex facie, Article 212 of the Constitution relied 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 grounds of any alleged irregularity of the procedure,” the three-judge bench said in response.

The court also referred to a 1998 order wherein a composite floor test was ordered in Uttar Pradesh to ascertain who — Kalyan Singh or Jagdambika Pal — enjoyed majority support in the state Assembly. The issue was rooted in then Uttar Pradesh governor Romesh Bhandari sacking Kalyan Singh as chief minister and appointing the Congress’ Jagdambika Pal instead.

Th court’s order on Tuesday relied on several precendents, including in March 2005 when the Supreme Court had directed a floor test in Jharkhand, and in 2016, when a floor test was ordered in Uttrakhand wherein the majority backing of then chief minister Harish Rawat was put to test.

In Goa in 2017, when a similar situation arose, the top court had ordered a floor test. And the last such instance was on May 18, 2018, when the Supreme Court directed a floor test to ascertain the majority support to Karnataka chief minister B.S. Yeddyurappa in the 224-member Assembly.

Having declined the plea for more time, the court said that the contentions advanced by the chief minister, BJP and the governor’s office on the maintainability of the petition by the Shiv Sena, NCP and the Congress, including the extent of judicial review and the validity of the governor’s satisfaction, would be adjudicated later, at an appropriate time.