The Supreme Court, in a rare sitting on Sunday, ordered Solicitor General of India Tushar Mehta to produce two documents by 10.30 am on Monday that it feels would be crucial in determining the validity of Maharashtra governor’s move to swear in Devendra Fadnavis as the chief minister on Saturday morning.

One is the order of the governor inviting Fadnavis to form the government and the other is the letter of support from the legislators that Fadnavis produced to the governor to show majority in the Assembly.

On Saturday, Bharatiya Janata Party’s Fadnavis took over as Maharashtra’s chief minister with the help of dissident Nationalist Congress Party leader Ajit Pawar, who was made the deputy chief minister. The President’s rule that was in force in the state was revoked overnight to facilitate the government formation.

The NCP chief Sharad Pawar on Saturday claimed that Ajit Pawar’s decision did not have the party’s backing. In the evening, the party removed Ajit Pawar as the legislative party head. The developments put a big question mark on the decision of the governor to invite the BJP to form the government as it became increasingly clear that the party’s claim of holding majority support was not strong enough.

Late on Saturday evening, the Shiv Sena, the NCP and the Congress moved the Supreme Court against the government formation. The court on Sunday passed the order seeking copies of the two letters from the solicitor general to determine if the governor’s actions were constitutional.

‘Governor cannot appoint anyone he likes’

Appearing for the Shiv Sena, senior lawyer Kapil Sibal accused the governor of acting under the direct instructions of the BJP. He added that there was no letter asserting majority in the house. In fact, the majority existed with the post-poll alliance of Shiv Sena, NCP and the Congress – a fact ignored by the governor.

Senior lawyer Abhishek Manu Siinghvi, appearing for the NCP, said the support of the legislators has to be in writing with individual signatures. The governor was duty bound to verify these physically and only upon satisfaction of its veracity can the chief minister be appointed.

Singhvi asserted that the only way to determine majority was on the floor of the assembly. Citing the example of the Karnataka assembly crisis after the 2018 elections, Singhvi said the Supreme Court had made it clear in that case that the floor test should not be done by a secret ballot.

In response, former Attorney General Mukul Rohatgi, who appeared for the BJP and several independent legislators, argued that the Supreme Court should not interfere in the decisions of the governor. Citing Article 361 of the Indian Constitution, he said the decision was beyond judicial review. To this, Justice NV Ramana, who is leading the three-judge bench, said the governor cannot appoint anyone he likes and the question of when a governor’s decision could be reviewed has been well settled by the court.

Delay in floor test?

In the Karnataka case of 2018, the governor invited the single-largest party, the BJP, to form the government despite the Congress and the Janata Dal (Secular) forming a post-poll alliance and claiming to have the majority support. There, the BJP was just short of majority and was given two weeks to take a confidence vote in the assembly. The Congress and the JD (S) moved the Supreme Court, which, instead of determining the validity of the governor’s discretionary decision, ordered for a floor test within 48 hours.

This forced BJP’s BS Yeddyurappa to resign before the floor test could be conducted, as his party was unable to cross the halfway mark.

In the Maharashtra case, the facts are different and more serious. With 105 seats in the house, the BJP is well short of the majority mark of 145. On Saturday, it joined hands with NCP leader Ajit Pawar to form the government. However, the NCP has questioned the very validity of Ajit Pawar’s claim that he has the support of enough NCP legislators to give the BJP a majority in the assembly. This means, the very factual basis of the governor’s decision to invite the BJP has been questioned. Did he invite the BJP without proper letters of support from the NCP MLAs who Ajit Pawar claimed were with him?

This is the reason why the Supreme Court has called for the relevant records from the governor to determine if the government was formed as per the principles of the Constitution, which require the governor to be satisfied that a party or an alliance has the numbers in the house before appointing its leader as the chief minister.

However, it is hard to say what the final outcome of such an exercise would be. Now that a government is in place, the principle laid down by the Supreme Court in earlier judgements, that majority can only be determined on the floor of the assembly, would kick in. Even if the Supreme Court finds that the governor’s decision was not based on facts, the only possible remedy seems to be to order an immediate floor test. It is difficult to foresee a situation where the court would strike down the governor’s decision and in a way remove the government from office.

Therefore, the crucial question is why the Supreme Court did not decide to order an immediate floor test on Sunday itself? Given the threat of horse trading, this was necessary to protect the sanctity of the democratic process.

In any case, the Maharashtra drama has opened a golden opportunity for the court to once and for all settle questions over how a governor should function after an election to the state assembly. A binding procedure on the formalities to be followed will help avert a case like Maharashtra.

Role of the President

While the other three parties have questioned the functioning of the Maharashtra governor in facilitating BJP’s power grabbing in the state, the role of President raises equally disturbing questions.

Given the swearing-in ceremony took place at 8 am on Saturday morning, it can be safely assumed that all the legal requirements to pave the way for a BJP-led government in Maharashtra were fulfilled on the intervening night of Friday.

The most important of these legal necessities was the withdrawal of the President’s rule imposed on the state last week. For this to happen, the Union Cabinet had to meet and then send a resolution to the President to issue his orders.

The Constitution mandates that the President acts on the aid and advice of the Cabinet led by the Prime Minister. In Maharashtra’s case, media reports suggest that the Cabinet as a whole did not meet. Instead, Rule 12 of the business transactions rules of the government was invoked. This rule provides the prime minister the powers to take decisions on behalf of the cabinet in times of urgency and get a formal resolution passed at a later time, termed legally as ex-post facto approval.

However, as the rule makes it clear, this is an emergency provision expected to be used for matters of great importance. Is facilitating a BJP government in Maharashtra by splitting an opposition party a matter of such great national urgency?

The Centre could claim that the possibility of an elected, democratic government being formed in a state which is under President’s rule is an urgent matter. Even if this is granted, is it so urgent that it required moving papers dead in the night? The answer is straightforward. This is purely political as the BJP wanted to maintain the surprise element and not give the Opposition, especially the NCP, any chance to recover and scuttle its attempt to form the government. These same moves in daylight would have raised suspicions and alerted the Opposition.

This is where the focus shifts to the Rashtrapati Bhavan. The Constitution does not envisage the President to be a rubber stamp or a post office, accepting everything that the Centre does without applying his or her mind.

In fact, even Rule 12 of the business transactions rules mandates several key processes for its use. This is laid out in the cabinet secretariat handbook issued to officers. The handbook says that the proposal has to be moved by the concerned ministry only, which in this case would have been the Union home ministry. Second, the proposal has to be accompanied by a detailed justification, “clearly bringing out the urgency involved.” In fact, the handbook points out that the circumstances have to be “exceptional” for the rule to be put to use by the prime minister’s office. The proposal has to say why it cannot be processed under normal rules.

Once these requirements are fulfilled, the proposal is sent to the President for his approval.

This is where the role of the President is crucial. It is nobody’s argument that the President should go against the recommendation of the prime minister, which would cause a severe crisis of governance. But given his role as the country’s foremost Constitutional authority, when something is moved using exceptional clauses, should not the President take his time to consider whether this was an administrative emergency that warranted its use or an act guided by vested political interest disguised as something else?

At the least, the President could have asked for time to study the matter – instead of issuing orders presumably in the middle of the night – even if his decision eventually was to approve the proposal. It is important for authorities, especially constitutional ones, to demonstrate to the public that they are following the Constitution in letter and spirit to inspire confidence in the rule of law.

Instead, the President seems to have given his nod to the proposal almost immediately and withdrew his rule in Maharashtra early on Saturday morning.

When Kapil Sibal, on behalf of the Shiv Sena, brought up the question over the President’s rule being abruptly revoked, the court pointed out that the actions of the President were not the subject matter of the case.