Shiv Sena and Ors. vs Union of India and Ors.

Court

Supreme Court of India

Date

26 November 2019

Case No.

Writ Petition (Civil) No. 1393 of 2019

Bench

N.V. Ramana, Ashok Bhushan, Sanjiv Khanna

Citation

[2019] 14 S.C.R. 206 : 2019 INSC 1286

Headnote

Constitution of India: Art.212 – Constitutional morality – Prepoll 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 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.

The following Order of the Court was passed 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. Erskine May,

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