Maharashtra – Urgent Floor Test Ordered To Curtail Horse Trading and To Protect Democratic Values: Supreme Court

It is quite significant to note that just recently, the Supreme Court on November 26, 2019 in Shiv Sena And Ors. Vs Union Of India And Ors. in Writ Petition (Civil) No. 1393 of 2019 in the ongoing serious political deadlock in Maharashtra has very rightly ordered an urgent floor test to be held on November 27 at 5 PM so that it may well be pretty clear as to whether the newly sworn in Chief Minister Devendra Fadnavis enjoys majority in the State Assembly or not! This latest order was necessitated after Shiv Sena knocked the doors of the Apex Court along with Nationalist Congress Party (NCP) and Congress. It is also notable that the Apex Court has made some very important observations which shall be discussed later.

To start with, this notable and latest judgment delivered by Justice NV Ramana, Justice Ashok Bhushan and Justice Sanjiv Khanna sets the ball rolling by first and foremost pointing out in para 1 that, “There is no gainsaying that the boundaries between the jurisdiction of Courts and Parliamentary independence have been contested for a long time [Erskine May, Parliamentary Practice, 25th edition, 321 (2019)]. 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.”

While laying the background, it is then recapitulated in para 2 that, “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 pre-poll alliance between the 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.” This clearly manifests that at this point of time the BJP did not have the requisite numbers to prove its majority in the floor of the House!

Moving on, it is then illustrated in para 3 that, “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.” This clearly manifests that no party had the requisite numbers and the Opposition were not united in staking claim to form the Government at that point of time. The coalition between Shiv Sena, Congress and NCP took an excruciatingly long time to emerge as a legitimate stakeholder. This alone explains why we saw that President’s rule was imposed.

Needless to say, it is then laid bare in para 4 that, “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.”

Going forward, it is then enunciated in para 5 that, “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.” This came in for a lot of stinging criticism from various quarters as transparency in sticking to rules were given a complete good bye!

Most importantly, it is then very rightly held in para 27 that, “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.  Pro-tem 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 Pro-tem 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.”

Lastly, it is then held in para 28 that, “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.”

On a concluding note, it may well be said that the Apex Court has chosen the right path in holding that  a floor test to be held on 27.11.2019. The Apex Court has rightly decided not to delay this crucial matter any further as it would have only served in ensuring that horse trading happens which can never be allowed under any circumstances as it gives a bad name to our democratic country and ensures that corrupt politicians rule the roost! To ensure that no unfair means are resorted to by any of the political party and to ensure that democratic values are  duly protected, the Apex Court has also rightly decided to direct that the  proceedings have to be live telecast, and appropriate arrangements are to be made to ensure the same!  It has also been made clear that the floor test will not be conducted by secret ballot. It is a highly commendable ruling and it has rightly relied on the proposition that floor test was the best method to test majority and certainly it must be lauded unequivocally!

Sanjeev Sirohi