Maharashtra Legislative Assembly elections jointly. On 24.10.2019,
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
18
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.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 1393 OF 2019
SHIV SENA AND ORS. …PETITIONERS
VERSUS
UNION OF INDIA AND ORS. …RESPONDENTS
ORDER
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).
1
REPORTABLE
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
2
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
3
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 24.02.1998 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 conduct 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.
4
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 morning 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.
5
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 assuming 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
6
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
7
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.
8
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.
9
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:
10
“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
11
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:
“1. …
(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.”
12
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 already 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.
13
(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.”
14
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
15
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. In Chandrakant 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.
16
26. 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.
17
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
18
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.
19
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
18
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.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 1393 OF 2019
SHIV SENA AND ORS. …PETITIONERS
VERSUS
UNION OF INDIA AND ORS. …RESPONDENTS
ORDER
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).
1
REPORTABLE
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
2
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
3
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 24.02.1998 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 conduct 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.
4
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 morning 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.
5
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 assuming 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
6
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
7
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.
8
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.
9
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:
10
“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
11
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:
“1. …
(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.”
12
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 already 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.
13
(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.”
14
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
15
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. In Chandrakant 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.
16
26. 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.
17
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
18
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.
19
