CHAPTER IV
Mumbai:
Even before the Congress and the Nationalist Congress Party (NCP) could begin talks over staking claim to form the government, Maharashtra Governor Bhagat Singh Koshyari on Tuesday afternoon has submitted his report to the President of India recommending imposition of the Presidents Rule in Maharashtra. In a fast paced developments, Prime Minister Narendra Modi before leaving for the BRICS summit hurriedly convened a meeting of his union cabinet to ratify the report submitted to the Ministry of Home Affairs (MHA).
No sooner had this happened Shiv Sena president Uddhav Thackeray dialed senior Congress leader and noted Supreme Court lawyer Kapil Sibal to move the apex court challenging the Governors decision. The Sena moved the apex court arguing that the Governor did not grant them three days time to prove they enjoyed the majority support. Speaking to newspersons, senior Sena MLC, Adv Anil Parab argued that the Governor ought to have given substantial amount of time to each political party to stake claim to form the government.
Sena MLC Advocate Anil Parab along with the NCP and the Congress in its instant writ petition filed under Article 32 read with Article 14 and 21 of the Constitution of India challenged what it argues the arbitrary, unconstitutional, unreasonable, capricious and malafide decision date November 11, 2019 of the Honorable Governor in rejecting the petitioners (Sena) request for three days time to submit letters of support to prove its majority for forming the government in the state of Maharashtra.
The Sena in its petition argued that for the last 18 days the Governor did not take any action in regards to government formation. However, on November 9 he did invite the BJP to state its willingness and ability to form the government and gave it 48 hours to do so. However, the BJP on November 10 expressed its inability to stake claim to form the government.
Thereafter, the Governor called upon the petitioner (Sena) to convey its willingness and ability to form the government, however giving only 24 hours time to demonstrate its majority. Citing the Supreme Court judgment in the S R Bommai case of 1994, the petitioner argued that the Governor ought to have invited the petititoner (Sena) to form the government and prove its majority on the floor of the house.
Around 3.16 pm, the Governor of Maharashtra tweeted “The Governor of Maharashtra Bhagat Singh Koshyari having been satisfied that as the government of the State of Maharashtra cannot be carried out in accordance with the constitution has today submitted a report contemplating the provisions of Article 356 of the constitution”. According to sources in New Delhi the MHA has asked the state administration to put the security apparatus on high alert.
No sooner had the official communiqué been tweeted by the Governor from his official twitter handle @maha_governor, Sena president Uddhav Thackeray immediately dialed Sibal urging him to file an urgent petition before the Supreme Court challenging the Governors report. Speaking to newspersons, senior Sena Rajya Sabha MP Anil Desai stated that Sena president Uddhav Thackeray has been keeping a close watch on the developments and all necessary steps were being taken.
A furious Congress charged the Bharatiya Janata Party (BJP) and the Governor of “politicizing” the office of the Governor. The Congress expressed shock at the Governors recommendation alleging that it smacks of “illegality”. The Congress remarked that the Governor could not give 48 hours time to the Sena. Speaking to newspersons former Maharashtra Chief Minister Prithviraj Chavan argued that as per the Sarkaria commission recommendations the Governor ought to have exhausted all the provisions of inviting the Congress which is the fourth largest political party.
He added that it was unjust on the part of the Governor to have only invited the NCP and not extending the same invitation to the Congress. Former Congress chief minister Ashok Chavan argued that the opposition is in a position to form the government. The NCP has been given time till 8.30 pm to submit its proof of support before the Governor. Meanwhile, according to unconfirmed reports the NCP in the morning is reported to have sought 48 hour time from the Governor to submit its proofs to stake claim to form the government.. Sources argued that the Governor had received reports of possible horse-trading of MLAs and hence recommended imposition of Presidents Rule to the Center.
Earlier, speaking to newspersons at Y B Chavan Center near Mantralaya, state NCP spokespersons Nawab Mallik disclosed that all the 54 NCP MLAs had passed a resolution empowering party president Sharad Pawar to take all decisions regarding staking claim to form the next government. He added that the resolution also approved the setting up of a committee under the party president to carry out talks with like-minded parties about forming the next government.
The state NCP spokesperson stated that its MahaAghadi ally the Congress will be taken on board while holding talks on government formation. He added that the Governor has given time till 8.30 pm to the NCP and that the party will hold talks with the Congress delegation. He further remarked that a government cannot be formed without the support of the three political parties (Congress, NCP and the Sena). Senior NCP leader Ajit Pawar stated that the party will hold talks with the Congress delegation at 4.30 pm in Mumbai.
Meanwhile, Maharashtra Regional Congress Committee (MRCC) spokesperson Sachin Sawant in his tweet while condemning the imposition of the Presidents Rule argued “if no clear majority – after exploring all possibilities to form Govt, Governor can resort to Article 356 as the last resort. He may exercise his discretion but in judicious manner, beyond political lines”.
As per the Sarkaria Commission recommendations on the Role of the Governor are mentioned in Chapter IV, Page 119. It reads thus “the party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the government. groups of parties by sounding them, in turn, in the order of preference indicated below: (i) An alliance of parties that was formed prior to the Elections. (ii) The largest single party staking a claim to form the government with the support of others, including ‘independents’. (iii) A post-electoral coalition of parties, with all the partners in the coalition joining government”.
Furthermore, “(iv) A post-electoral alliance of parties, with some of the parties in the alliance forming a Government and the remaining parties, including ‘independents’, supporting the government from outside. A Chief Minister, unless he is the leader of a party which has absolute majority in the Assembly, should seek a vote of confidence in the Assembly within 30 days of taking over. This practice should be religiously adhered to with the sanctity of a rule of law. The Governor should not risk determining the issue of majority support, on his own, outside the Assembly. The prudent course for him would be to cause the rival claims to be tested on the floor of the House”.
The Article 356 of the Constitution of India as mentioned by the Governor in his report to the MHA states – “(1) If the President, on receipt of a report from the Governor 1*** of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation — (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor 2*** or any body or authority in the State other than the Legislature of the State; (b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament”.
The crux of the S R Bommai judgment delivered by the apex court in 1994 clear states – “ (1). The proclamation of emergency under Article 356 is subject to Judicial Review. The relevancy and the need of such a proclamation shall be struck down by the concerned court if found malafide. (2). The power of President under Article 356 is subject to restrictions. The opinion is formed is based on the report of the Governor and not sole satisfaction. (3). The Supreme Court can struck down the proclamation even if both the houses of Parliament passes the same on malafide grounds”.
