R. Balaji, TT, New Delhi, March 14: The Supreme Court today allowed Manohar Parrikar to take oath as chief minister of Goa but asked the governor to conduct a floor test on Thursday itself.
A bench of Chief Justice J.S. Khehar and Justices Ranjan Gogoi and R.K. Aggrawal rejected a Congress plea to stay the swearing-in on three grounds that suggested the party did not have the numbers to cobble together a government in Goa.
One, the Congress has not yet demonstrated before the governor that the party has the numbers to prove its majority.
Two, the Congress did not furnish any affidavit in the court on the actual number of MLAs supporting the party despite "having the entire night" to do so.
Three, the Congress did not make Parrikar a party to the case, prompting the court to say "you want an order behind the back of a man and we shall not allow this".
At one point, Justice Khehar told the petitioner, Goa Congress leader Chandrakant Kavlekar: "If I were you, I would be sitting on a dharna in front of Raj Bhavan."
Justice Khehar was wondering why the Congress had not demonstrated its numbers before the governor or chosen to file an affidavit before the top court showing the actual number of legislators supporting it.
Initially, the court mulled scheduling the floor test on Wednesday itself. But after consultations among the judges on the bench, the governor was asked to hold it on Thursday.
The BJP, which won 13 seats in the 40-member House, claims the support of 21 members while the Congress has emerged as the single-largest party with 17 seats.
The court issued the directive after a 90-minute special hearing during which senior counsel Abhishek Manu Singhvi, appearing for Kavlekar, sought a composite floor test.
But the Chief Justice rejected the plea on the ground that the Congress had not been able to demonstrate its numbers.
Singhvi said: "We have to elect a leader. Is it a constitutional process or a race? This is not a cat-and-mouse game. The governor could have asked us and still come to the same conclusion. The governor cannot create a government. The people create a government."
The bench told the senior counsel that as Kavlekar had not made Parrikar a party to the dispute, no order could be passed behind his back. Senior counsel Harish Salve was present in the court on behalf of Parrikar along with additional solicitor-general Maninder Singh.
Salve said that since the governor had already fixed a 15-day deadline for Parrikar to prove his majority, the court should not interfere with the process. However, he said that if the court desired so, the floor test could be held "as soon as possible".
Justice Khehar said: "We are not willing to accept as soon as possible. It has to be forthwith. This is a question of democracy at large. This sensitive and contentious issue can be decided by a simple direction - a floor test at the earliest."
The court said the senior-most member of the 40-member House would be the pro-tem Speaker during the floor test.
Singhvi assailed governor Mridula Sinha's decision, saying she "was pre-advised and pre-determined to invite Mr Parikkar. Can the governor exercise his discretion without even a phone call or any consultations or without giving any opportunity to the single largest party?"
Singhvi said that besides outgoing chief minister Laxmikant Parsekar, six of his cabinet ministers had lost the elections, which indicated that the mandate went against the BJP. "This is a mandate against the BJP. Mandate is part of democracy and democracy is a part of the basic structure," Singhvi said.
However, the Chief Justice said: "You are now putting us in the governor's position. The largest single party is invited unless someone else says that they have the strength. You must understand that the convention of inviting the single largest party is subject to numbers. If no party is in a position to form a government, the governor is under a bounden duty to determine who can form a government."
Justice Khehar added: "You had the entire night, the best time to get the affidavits ready or presented your supporters before us. You should have made him (Parrikar) a party when you knew he is going to become the chief minister. You want an order behind the back of a man and we shall not allow this.
"You don't have the number and that's why you didn't stake claim to form government. You have not demonstrated before the governor that that number is in your favour."