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).

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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

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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

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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 pro­ tem 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.  

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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.

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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

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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

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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.  

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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.

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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:  

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“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

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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.”

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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.

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(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.”

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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

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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.

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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.

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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  

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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.

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