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Maharashtra Political crisis: Can SC challenge governor’s order?

“The area for the exercise of the Governor’s discretion is limited. Even in this limited area, his choice of action should not be arbitrary or fanciful,” former CJI JS Khehar noted.

Mumbai: After results were declared on October 24 ShivSena decided to break alliance with BJP and NDA as there wish was not fulfilled to have a rotational chief minister. As BJP was a single largest party it was invited to form the government and Maharashtra Governor Bhagat Singh Koshyari asked Devendra Fadnavis to show his willingness to form the government in the state.

The Bharatiya Janata Party (BJP) leaders said, will not form the government in Maharashtra since it does not have the required numbers. The BJP informed the Maharashtra governor that it will not form the government in the state in view of their ally ShivSena’s stand to not join them in the efforts.

As BJP’s refused, Maharashtra Governor Bhagat Singh Koshyari asked ShivSena, the second-largest party, to indicate its willingness and ability to form the government in the state. The governor has asked the ShivSena to meet him at 7.30 pm.

A statement issued by the governor’s office: Delegation of ShivSena met Governor and expressed willingness to form the government. However, they couldn’t submit a required letter of support. They submitted a letter requesting a 3-day extension for submitting letters of support. But Governor expressed the inability to give a further extension.

On November 12 President Ram Nath Kovind approved the cabinet decision to impose President’s Rule in Maharashtra following the deadlock over government formation even after almost three weeks since the election results came out. President Ram Nath Kovind decided to impose President’s Rule in Maharashtra based on the recommendation of Maharashtra Governor Bhagat Singh Koshyari.

Meanwhile, the ShivSena started deliberation on the possible post-poll alliance Maha Vikas Aghadi with NCP and Congress. On November 22 Sena-NCP-Congress’ prominent leaders met once again to discuss government formation and CM candidates to lead the government.

However, the tables in Maharashtra politics turned overnight as on Saturday morning, Devendra Fadnavis was sworn in as the chief minister of Maharashtra. It was a stunning development that came as the nation expected an alliance excluding the BJP to claim the right to form a government.

On the other hand, the man taking oath as deputy chief minister was Ajit Pawar, a member of the Nationalist Congress Party (NCP), one of the three parties working to create the alternative alliance.

Minutes after Fadnavis and Pawar were sworn in, Prime Minister Narendra Modi congratulated them and said he was “confident they will work for the bright future of Maharashtra”. The President’s Rule in the state was revoked at 5.47 AM in the morning and oath was administered at 8 AM.

Role of Governor was questioned

All the three parties Sena-NCP-Congress questioned the governor’s decisions on revoking Presidential rule from the state and suddenly organize the swearing-in ceremony of BJP leader Devendra Fadnavis and Deputy CM Ajit Pawar. The opposition raised several questions on time allocation for proving the majority and submitting a letter to stake claim. It was also alleged that BJP was most favored and other parties were claiming that this is an unfair decision by governor.

The matter was taken to the supreme court

On November 23, all three parties decided to file the case against the governor’s alleged unfair decision in Top court. They all demanded an immediate floor test. The lawyers representing the three parties-Kapil Sibal and Abhishek Manu Singhvi contested that the BJP doesn’t have enough numbers to form the government.

The order on a plea by the Congress-NCP-ShivSena on Tuesday combines plea against the Maharashtra government’s decision to swear in Devendra Fadnavis as chief minister in a midnight coup engineered by the BJP with the support of Ajit Pawar. A bench comprising Justices NV Ramana, Ashok Bhushan, and Sanjiv Khanna is likely to pass an order on holding of a floor test, which the combine was pressing for today itself.

SG Tushar Mehta commenced arguments, raised preliminary objections to judicial review of the Governor’s decision. Mehta clarified that he was appearing for the Secretary of the Governor since the Governor could not be a party in person. “No party has till date gone to the Governor saying it can form the government. The letter by Ajit Pawar to the Governor dated November 22 contains signatures of 54 MLAs,”.

Senior lawyer Kapil Sibal says he wants to place it on record that he is ready with affidavits of 154 MLAs and presses for an immediate floor test.

“Floor test should happen within 24 hours. Protem speaker should be the most senior member of the House. An open ballot, division the House and video-recording of the proceedings are what we are asking for,” Sibal tells the SC bench.

On the other hand, Mukul Rohatgi said the attack on the governor was unfounded. He asked if there is substance in the main matter for the Court to pass interim orders?

The buck stops at the crucial question whether the Supreme Court in its order tomorrow will advance the date of floor test decided by the governor i.e. November 30. The respondents argued that SC had no jurisdiction to give out a verdict against the decision of Governor.

Can the decision of the governor be challenged by the SC?

The courts generally cannot interfere in the decisions taken by the governors as they are constitutionally placed authorities.

Gubernatorial Immunity
The Governors of States are immune to judicial proceedings. The privilege emanates from Article 361 of the Indian Constitution. They are not answerable to any court for exercising the powers vested with them nor are they liable to explain to any court acts done by them.
There cannot be a criminal proceeding or arrest during the Governor’s term of office. There cannot be civil proceedings against the governor in which relief is claimed during his term of office.

However, a Constitution Bench of the Supreme Court has widened the boundaries of judicial review to the extent that it can now examine whether the President or the Governor was spurred by an “oblique motive” to bypass the Legislature and promulgate an ordinance.

In case the apex court concluded that if the President or the Governor was influenced by ulterior motives to promulgate the ordinance, such an act by the two constitutional authorities would amount to a fraud.

The satisfaction

“The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review,” Justice D.Y. Chandrachud wrote in a common judgment with Justices S.A. Bobde, A.K. Goel, U.U. Lalit and L. Nageshwara Rao.

Justice Chandrachud observed that the apex court would scrutinize whether the satisfaction of the President or the Governor to promulgate an ordinance was based on relevant material or whether it amounted to a “fraud on power or was actuated by an oblique motive.”

Governor’s discretionary Powers:

The five-judge Constitution Bench of the Supreme Court led by then Chief Justice J.S. Khehar in the Nabam Rebia judgment of 2016 ruled that Article 163 does not give Governors a “general discretionary power” as is often misunderstood.

“The area for the exercise of his (Governor) discretion is limited. Even in this limited area, his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution,” the Constitution Bench, of which the current Chief Justice Dipak Misra was a part of, held.

The Rebia case dealt with the problem of the Arunachal Pradesh Governor advancing the date for the sixth Assembly session in the northeastern State.

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