Maharashtra Governor acted hastily, unethically: Constitutional experts

A day after Maharashtra Governor B.S. Koshyari administered oath of office to BJP’s Devendra Fadnavis and NCP rebel Ajit Pawar in an early morning hush hush ceremony that shocked everyone, constitutional experts including Soli J. Sorabjee and Sanjay Hegde have questioned the propriety of the Governor’s move.

Former Attorney General Sorabjee said the Maharashtra Governor’s action was simply incorrect. “I think the Governor acted hastily. It was simply incorrect. He should not have immediately sworn-in Devendra Fadnavis as Chief Minister. He should have waited to see the numbers of the NCP-Congress-Shiv Sena alliance,” he said.

Pointing towards the SR Bommai case (SC, 1994), Sorabjee said the floor test is the only way to determine majority.

“In this case, the governor could have ordered the floor test immediately. This haste of his casts a doubt about his motivation. This will mean that people will start doubting the motives of our Constitutional functionaries. Then our system becomes vulnerable to suspicion and that is not good for our nation,” reminded Sorabjee, who was the Attorney General intermittently until 2004.

In the SR Bommai vs Union of India case of 1994, the judgement attempted to curb blatant misuse of Article 356 of the Constitution of India, which allowed President’s Rule to be imposed over state governments. Sorabjee had appeared for the petitioners in the case along with Ram Jethmalani and Shanti Bhushan.

Questioning the manner in which Devendra Fadnavis was sworn in, Sorabjee said there does seem to be an element of secrecy. “And that is where the Governor is at fault. He should have waited. It does seem like as if the Governor does not know the Constitutional provisions. This has forced the people to go to the Supreme Court and it promptly sat on Sunday to hear the matter,” underscored Sorabjee.

Agreeing with Sorabjee is senior supreme court advocate Sanjay Hegde. “The President used powers conferred by clause (2) of article 356 of the Constitution to revoke President’s rule. Those rules are meant for emergencies. It was not illegal but certainly unethical,” Hegde said.

“It was not illegal because most often just decisions are subsequently ratified by the Cabinet. In this case, the Cabinet has not met so far, but if it does then this decision too will be ratified. Then the ratification dates back to the original date. So, therefore there is no illegality. But it is certainly unethical because these provisions are for emergencies and especially for genuine emergencies. So, it is the abuse of the rule,” explained Hegde.

The governor may not have been wrong when he swore in Devendra Fadnavis, but subsequent events prove that the governor’s decision was mistaken, maintained Hegde.

“The governor can even now take this into account and ask for an immediate floor test. Why does anyone have to wait for the Supreme Court to order it. The present Governor does not seem to be inclined to take this into consideration, but a good governor would have,” said Hegde.

The senior lawyer, who has appeared in several NRC and mob lynching cases, believes that if the Maharashtra governor is not inclined to call a floor test, the Supreme Court can always advance the date if it feels that a delay in the floor test would lead to horse-trading of MLAs.

As far as the Governor is concerned, Hegde said that his hurry may have led him to take an incorrect decision.

“Were there objective factors which would lead a reasonable man to conclude that the claim was backed by a majority of the MLAs? Did he have enough data to conclude that if Devendra Fadnavis could ultimately command a majority on the floor of the house? If he did not have it, then his subjective satisfaction could be double guessed by a court of law,” underscored Hegde.

Maharashtra was placed under President’s Rule on November 12 after the Assembly elections delivered a fractured mandate. The President’s Rule is usually revoked after a recommendation for the same is made by the Union cabinet to the President.

But the central government invoked Rule 12 of the Government of India (Transaction of Business) Rules to revoke the President’s Rule at 5.47 a.m. on Saturday, without holding a meeting of the Union cabinet.