SHIV SENA AND ORS. versus UNION OF INDIA AND ORS.
[2019] 14 S.C.R. 206, Supreme Court of India, 2019
Outcome: Directions issued
Segment: Ratio
A
B
C
D
E
F
G
H
206
SUPREME COURT REPORTS
[2019] 14 S.C.R.
SHIV SENA AND ORS.
V.
UNION OF INDIA AND ORS.
(Writ Petition (Civil) No. 1393 of 2019)
NOVEMBER 26, 2019
[N. V. RAMANA, ASHOK BHUSHAN AND
SANJIV KHANNA, JJ.]
Constitution of India: Art.212 – Constitutional morality – Pre-
poll alliance between the BJP and the Shiv Sena who contested the
Fourteenth Maharashtra Legislative Assembly Elections jointly –
Declaration of result – No single party having requisite majority in
the House – Imposition of President’s Rule on 12.11.2019 – On
23.11.2019, at 5.47 AM, President’s Rule revoked by exercise of
power conferred by Clause (2) of Art.356 of the Constitution –
Thereafter, Governor by letter dated 23.11.2019 invited respondent
no.3 to form the Government and on the same day administered
oath to respondent no.3 and 4 at 8AM – Aggrieved petitioners filed
instant writ petition under Art.32 of the Constitution challenging
the Governor’s action in calling upon respondent no.3 to form the
Government and seeking direction to the Governor to invite the
alliance of MVA comprising of Shiv Sena (petitioner), INC and NCP
which had support of more than 144 MLAs to form Government –
While passing interim directions, the Court Held: Ex facie, Art.212
of the Constitution, relied on by the Respondents, 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 – Sub-Article (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 – It was further noted that oath
   [2019] 14 S.C.R. 206
206
A
B
C
D
E
F
G
H
207
was not administered to the elected members even though a month
had 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, the Court
found it 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, the Governor of the State of
Maharashtra is requested to ensure that a floor test be held on
27.11.2019 – The Court directed following procedure to be followed
for conducting the floor test: Pro-tem Speaker shall be solely
appointed for the aforesaid agenda immediately – All the elected
members shall take oath on 27.11.2019, which exercise should be
completed before 5:00 p.m – Immediately thereafter, the Pro-tem
Speaker shall conduct the floor test in order to ascertain whether
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 – The proceedings to be live telecast,
and appropriate arrangements be made to ensure the same.
Shrimanth Balasaheb Patil v. Hon’ble Speaker,
Karnataka Legislative Assembly 2019 (15) SCALE
533 ; Union of India v. Shri Harish Chandra Singh
Rawat (2016) SCC OnLine SC 618 ; S.R. Bommai v.
Union of India (1994) 3 SCC 1 : [1994] 2 SCR 644 ;
Jagdambika Pal v. Union of India (1999) 9 SCC 95 ;
Anil Kumar Jha v. Union of India (2005) 3 SCC 150 ;
Union of India v. Sh. Harish Chandra Singh Rawat
(2016) SCC Online SC 442 ; Chandrakant Kavlekar
v. Union of India (2017) 3 SCC 758 ; G. Parmeshwara
v. Union of India (2018) 16 SCC 46 – relied on.
Case Law Reference
2019 (15) SCALE 533
relied on
Para 18
[1994] 2 SCR 644
relied on
Para 20
SHIV SENA AND ORS. V. UNION OF INDIA AND ORS.
A
B
C
D
E
F
G
H
208
SUPREME COURT REPORTS
[2019] 14 S.C.R.
(1999) 9 SCC 95
relied on
Para 22
(2005) 3 SCC 150
relied on
Para 23
(2017) 3 SCC 758
relied on
Para 25
(2018) 16 SCC 46
relied on
Para 26
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)
No. 1393 of 2019.
(Under Article 32 of the Constitution of India)
Tushar Mehta, SG, Kapil Sibal, Dr .Abhishek Manu Singhvi,
Devadatt Kamat, Majeed Memon,  Mukul Rohatgi, Maninder Singh,
Sr. Advs., Sunil Fernandes, Muhammad Ali Khan, Amit Bhandari,
Ms. Nupur Kumar, Rajesh Inamdar, Javedur Rahman, Aditya Bhat,
Ashwin Raj, Ms. Srinidhi Rao, Ali Rahim, Nikhil Bhalla, Ms. Priyansha
Indra Sharma, Nishant Patil, Ashok Basoya, Hemant Shah, Prastut Dalvi,
Ms. Kajal Dalal, Rahul Kaushik, Rajat Nair, Kanu Agrawal, Ms. Diksha
Rai, Ms. Palak Mahajan, Ishan Bisht, B.V. Balaram Das, Saurabh Kirpal,
Ms. Ranjeeta Rohatgi, Ms. Diksha Rai, Ms. Misha Rohatgi,
Ms. Devanshi Singh, Vamshi Rao, Ms. Samten Doma, Samrat Shinde,
Aditya Pande, Anand Dilip Landge, Ms. Pragya Baghel, Debasis Misra,
Narender Kumar Sharma, Vishaal S. Jogdand, Bijay Kumar Jha, Jagdev,
R.C. Paul Kanak Raj, Parvez Bashista, Ms. Pareena Swarup, Shreyas
Gacche, Dr. Santan Ray Choudhari, R. Sharath, Manav, Ms. Nanita
Sharma, Ms. Alpana Sharma, Jay Prakash Somani, Choudhari Samsuddin
Khan, M.S. Vinayak, Rajnish Kumar, Raj Saheb Patil, Bimal Roy Jad,
N.G. Dev, Sumit Moza, Prerit Shukla, Deepak Kumar, Sanjeev Uniyal,
Dhawal Uniyal, Ms. Sunita Sharma, Advs. for the appearing parties.
The
following Order of the Court was passed
O R D E R
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.
1 Erskine May, Parliamentary Practice, 25th edition, 321 (2019).
A
B
C
D
E
F
G
H
209
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 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.
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
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:
SHIV SENA AND ORS. V. UNION OF INDIA AND ORS.
A
B
C
D
E
F
G
H
210
SUPREME COURT REPORTS
[2019] 14 S.C.R.
“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, void-ab-initio, 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 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:
A
B
C
D
E
F
G
H
211
“Issue notice.
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 23-11-2019 inviting the
Respondent No.3 to form a Government on 23-11-2019 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.
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
SHIV SENA AND ORS. V. UNION OF INDIA AND ORS.
A
B
C
D
E
F
G
H
212
SUPREME COURT REPORTS
[2019] 14 S.C.R.
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 pro-tem 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 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 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.
A
B
C
D
E
F
G
H
213
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.
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 nine-Judge Bench
decision of this Court in S.R. Bommai v. Union of India, (1994) 3
SCC 1, wherein he held as follows:
SHIV SENA AND ORS. V. UNION OF INDIA AND ORS.
A
B
C
D
E
F
G
H
214
SUPREME COURT REPORTS
[2019] 14 S.C.R.
“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 all-pervasive
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:
“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
A
B
C
D
E
F
G
H
215
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. Sub-Article (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 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 27-2-1998 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.”
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,
SHIV SENA AND ORS. V. UNION OF INDIA AND ORS.
A
B
C
D
E
F
G
H
216
SUPREME COURT REPORTS
[2019] 14 S.C.R.
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 10-3-2005 on which day the newly
elected Members of the Legislative Assembly shall be
administered oath. We direct the session to continue and
on 11-3-2005 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 11-3-2005 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.
(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 11-3-2005 and no separate
notice would be required.
(6)
Till 11-3-2005 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
A
B
C
D
E
F
G
H
217
officials to take care to do so and the direction made by
the Court shall be complied with in letter and spirit.”
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 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 video-graphed 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
SHIV SENA AND ORS. V. UNION OF INDIA AND ORS.
A
B
C
D
E
F
G
H
218
SUPREME COURT REPORTS
[2019] 14 S.C.R.
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.
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) Pro-tem Speaker shall be appointed for the aforesaid purpose
immediately.
(B) All the elected members shall take oath tomorrow (19-5-2018)
and this exercise shall be completed before 4.00 p.m.
(C) The Pro-tem Speaker shall conduct the floor test on 19-5-
2018 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.
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
A
B
C
D
E
F
G
H
219
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.
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.
Devika Gujral
Directions issued.
SHIV SENA AND ORS. V. UNION OF INDIA AND ORS.