Shiv Sena and Ors. Vs Union of India

Sridhruti Chitrapu | 26th November 2019

Introduction

The concept of separation of powers has been introduced in our constitution in such way that it can be tailored as per the need of the hour. It lets the Judiciary interfere with the democratic process when there is a need but only as a last resort. The situation must be dealt with the best interests of the citizens in mind. The instant case is of such nature. 

Facts

It is a well-known fact that there existed pre-poll alliance between the Bharatiya Janta Party and the Shiv Sena who contested for the Maharashtra Legislative Assembly elections. When the results were declared no single party had the requisite amounts of votes to form a majority. Governor called upon the BJP to form the Government being the largest party with 105 seats. But it denied forming the government as their alliance with Shiv Sena had allegedly broke. When the Governor asked Shiv Sena to form the Government they indicated their willingness claiming that they have majority support. But when this also failed the Governor asked the Nationalist Congress Party to form the Government, but it was not fruitful either. Finally, the Governor recommended President’s rule and it was imposed by a Presidential Proclamation.

It was contended by the Petitioner that they have been trying to form a coalition government with the Indian National Congress but the next day President’s rule was revoked. The Governor invited the Respondents to form a Government and administered their oath. Aggrieved by this a Writ petition has been filed by Shiv Sena seeking the Court to:

1. To declare that the Government formed by the Mr. Devendra Fadnavis as unconstitutional, arbitrary, illegal, void-ab-inito.
2. To order the Governor to invite the alliance of Shiv Sena and Indian National Congress to form the government under the leadership of Mr. Uddhav Thackeray. 

They also prayed to the Court for passing interim orders to issue directions for conducting a special session for administering oath to MLA’s immediately followed by holding a floor test and also to video record the entire proceedings. In addition, they have also prayed for the appointment of a pro-tem speaker to preside over the floor test. 

Held

The court emphasized upon the requirement for imbibing Constitutional mortality by curtailing undemocratic and illegal practices in the political arena. It stated that if the floor test is delayed there is a possibility of horse trading and it becomes necessary for the court to act so as to protect the democratic values. An immediate floor test, in such a case is the most effective method. The Honourable Court has thrown light upon the opinion of Justice B.P. Jeevan Reddy 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 confidence of the people can be indicated by the confidence shown by the way of a floor test. It may be understood that if a Chief Minister refuses to prove his majority within the shortest possible time then it can be interpreted as a prima facie proof that he no longer enjoys the confidence of the legislature. 

It was observed by the Court that, the oath has not been administered to the elected members even though enough time has elapsed since the declaration of the results. The court deemed it necessary to pass interim orders in the instant case to avoid uncertainty and to effectuate smooth running of democracy by ensuring a stable Government. It was held that conducting of the floor test was necessary as soon as possible to determine if the Chief Minister had the majority support of the House. And since the Speaker is also yet to be elected the Court prescribed a procedure for conducting the test:

1. A pro-tem Speaker shall be solely appointed for the stated agenda.
2. All elected members shall take oath on the ascertained date. 
3. And immediately after the administration of the oath the pro-tem Speaker shall conduct the floor test. the floor test will not be conducted by a secret ballot.
4. The proceedings have to be live telecasted. 

It was held by the Honourable Court that the interim orders have been passed since this is an emergent matter and the contentions raised by the petitioner will be heard at a later date.