Governor of Maharashtra has invited the BJP and NCP, on the basis of their joint claim, to form the Government. Shiv Sena, Congress and NCP (other faction) has approached the Supreme Court and have made all kind of claims. Supreme Court has reserved it’s order and it shall pronounce the judgment tomorrow morning. It is obvious that it shall not be just a short order but a detailed reasoned order. Let’s see what it can do. First note the principles:
Separation of powers:
Article 50 of the Constitution of India mandates that the State shall take steps to separate the judiciary from the executive in the public services of the State. The same principle stipulates that judiciary shall not interfere in Executive functions, which is what the Governor of Maharashtra is performing.
Jurisdiction of Supreme Court:
Since the parties have invoked the jurisdiction of Supreme Court by a direct petition under article 32, it is a very narrow jurisdiction i.e. for enforcement of fundamental rights. In this case the only fundamental right involved is article 14 which prevents arbitrary executive decision. It is for this reason the Court adjourned the matter yesterday to produce the material which was before Governor. As it turns out, the Leader of Nationalist Congress Party had submitted the letter of support to BJP with 54 signatures of MLAs of his party.
In this summary jurisdiction court does not and will not go into factual controversy raised by petitioner that claim is incorrect or that they have affidavits of MLAs that they do not support BJP etc.
Scope of Judicial Review:
When an Executive decisions and especially when the decision of a Constitutional Authority like Governor is challenged before Supreme Court, the court do not act like an appellate authority to judge if decision is right or wrong.
The principle of judicial review itself is very limited to see that the decision making process has not left out necessary factors and that irrelevant facts have not been included in the process.
Decision of Governor:
It is apparent from media reports that the decision of Governor forming subjective satisfaction that BJP, the single largest party was being supported by another party and thus he took the decision that they had a right to form the Government. There was no procedural impropriety. Now if the material produced before the Governor was wrong or factually incorrect, that shall be tested at the floor of the house. Governor and conversely Court is not to go into the numbers. That is a long settled principle.
Pre-ponement of floor test:
When nothing else worked, there was a demand for pre-ponement of date of floor test. Governor has asked the incumbent Chief Minister to seek confidence of the house within 14 days. It is a standard practice. Because it takes a few days to set the new assembly in order.
Unfortunately the Supreme Court has, in many cased pre-poned the date of floor test without specifying the legal principle behind the move. What is worse is that in Karnataka, the decision proved to be wrong and such decision helped a minority government to be formed which later fell down under it’s own weight.
There is another dark truth which no politician will admit but is now in public domain. Many parties give ticket to MLAs to fight election on it’s symbol on payment of substantial amount. It can not expect any dedication from such MLAs. Hence the entry of resort politics in which MLA’s are locked up in some resort or hotel without any communication with the rest of world. This is what happened in Karnataka. The forced vote of confidence lasted only a few months.
In any case, only a one third of MLAs can defect from a party to cross vote. If they are less than one third, they disqualify to remain member of the house.
Prophecy about tomorrow:
Congress party has already started it’s next move. Protest and strike. It appears that it knows that it will get no relief from court so it has moved on.
The most interesting part is that the Congress is the smallest of the big four and it has not chosen any leader of it’s legislative party, till date. Yet it is now most vociferous in demanding a floor test immediately.
Death wishes are most difficult wishes.
Remember the argument of Solicitor General. “Do not tread upon the roster of other authorities. What if legislature passes a law directing judiciary to dispose off all pending cases within 2 years?”
Has the message reached home? Let’s wait what turns out tomorrow in Court.