Sena, NCP, Congress move SC against swearing-in

New Delhi: The Shiv Sena, NCP and the Congress on Saturday night moved the Supreme Court seeking the quashing of Governor Bhagat Singh Koshiyari’s decision to invite Chief Minister Devendra Fadnavis to form government and swearing-in him and deputy CM Ajit Anantrao Pawar.

The three-party alliance said the Governor’s decision was “unconstitutional, arbitrary, illegal, void-ab-initio and violative of Article 14 of the Constitution.”

The hearing will take place on Sunday at 11.30 am. Contending that the Governor acted in a partisan manner, the petition says that Koshyari’s action was “malafide and for extraneous considerations without a prime facie satisfaction based on objective material” that Fadnavis had majority support in the Assembly.

It urged the top court to direct the Governor Koshyari to invite the alliance to form the government with Uddhav Thackeray as CM as it enjoyed the support of more than 144 legislators-elect (the halfway mark in the 288-member Assembly).

The joint petition by the alliance contended that they, along with the support of eight Independents have the support of 162 lawmakers.

Lawyers who filed the petition sought an urgent hearing and cited the instance of Karnataka where a challenge to the swearing-in of CM B.S. Yediyurappa was heard at night.

Contending that the Governor’s discretion in inviting Fadnavis was not beyond the pale of judicial review, it said illegal and arbitrary actions in brazen disregard to the Constitution and parliamentary conventions are to be struck down by the court as “the sentinel on the qui vive of the Constitution.”

It said the Governor’s discretionary powers are not ipse dixit but have to be exercised within Constitutional norms.

The pre-requisite to the formation of government is the prima facie satisfaction of the Governor based on “objective material” that the leader staking claim enjoys the majority support of the popularly elected lawmakers.

“The principle is sine qua non parliamentary democracy,” said the petition settled by senior lawyer Devadatt Kamat.

“The political executive is responsible to the legislature and can continue only so long as it enjoys the confidence of the majority.” The petition sought direction for an immediate floor test within 24 hours to stall any horse-trading and illegal maneuvers to cobble up a majority.

“There is nothing in the public domain as to how and in what manner Fadnavis and/or the BJP had staked claim to power between the intervening night of November 22 and 23, nor any material in the public domain to show that he had carried letters of support of 144 MLAs which in any event was not legally possible to do so,” the petition said.

It pointed out that there  was no parading of lawmakers before the Governor to demonstrate majority backing for Fadnavis. It categorically asserted that all MLAs of their front are completely and solidly together except for Ajit Pawar.

Recounting the sequence leading to the oath of Fadnavis, the petition points out how the Centre and the Governor moved with haste immediately after the trio of Sena, NCP and Congress announced formation of their alliance with a common minimum programme (CMP) on the evening of November 22, with a unanimity on Uddhav Thackeray as Chief Minister.

Facing the prospect of a non-BJP government staking claim to power, the BJP in the intervening night resorted to political machinations in an attempt to install a completely unconstitutional BJP government in the state, the petition said.