11.30pm notice too late for 5.47am government The court said the prayer 'has to be considered after perusing the order of the governor as well as the letters submitted by Fadnavis'

R. Balaji and TT Bureau, 25.11.19,  New Delhi: The Supreme Court has directed the Centre to place before it by Monday 10.30am the Maharashtra governor’s day-old letter inviting Devendra Fadnavis to form the government and the letter of support from NCP lawmakers that Ajit Pawar had furnished before the governor.

Although the Shiv Sena-NCP-Congress combine had sought a floor test within 24 hours, the court said the prayer “has to be considered after perusing the order of the governor as well as the letters submitted by Fadnavis”.

The three-judge special bench that assembled on a Sunday is expected to decide on Monday the petition for quashing the installation of the BJP-led government as unconstitutional or a direction for an immediate floor test.

The court, however, said it was “not going to consider… at present” the petitioners’ “second prayer” for a directive to invite the three-party post-poll combine to form the government.

Justice N.V. Ramana, who headed the bench, remarked that three of the respondents — Maharashtra, Fadnavis and Ajit Pawar — had not sent any legal representative to the court although the petitioners’ counsel had said “they have served the respondents through email”.

But Tushar Mehta, who was representing the Centre, said he had received the petitioners’ notice only at 11.30pm on Saturday — in his capacity as solicitor-general of India — and that no notice had been served on the Centre or the state of Maharashtra.

A short notice had not proved a constraint, however, on Friday night through Saturday morning when the Centre set off a chain of events that culminated in the Prime Minister invoking a special provision, the President signing a proclamation and the Union home ministry notifying the revocation of President’s rule in the state at 5.47am. Fadnavis and Ajit were hastily sworn in between 7.50am and 8.10am.

On Sunday, the court rejected the argument of former attorney-general Mukul Rohatgi, who was representing a group of BJP and Independent MLAs, that the governor’s actions were not open to judicial review.

It also rejected Mehta’s plea for time till Tuesday to produce the two letters the court has sought.

Senior advocate Kapil Sibal, representing the Sena, told the bench of Justices Ramana, Ashok Bhushan and Sanjiv Khanna that the Sena-NCP-Congress was willing to prove its majority in the House “by tomorrow”.

While passing the day’s orders, the apex court also issued formal notices to the Centre, the state of Maharashtra, Fadnavis and Ajit on the joint petition from the three parties.

Sibal alleged that governor Bhagat Singh Koshyari had acted in a “mala fide manner” in clandestinely inviting Fadnavis to form the government with purported NCP support a day after the Sena-NCP-Congress had announced it would stake its claim.

He said there was no clarity, either, whether the governor had set a timetable for a floor test at all.

“How the governor came to the conclusion (that Fadnavis had the numbers) was not known. No documents are available in the public domain,” he said.

“It’s not just bizarre, but the governor was acting under direct instructions from a political party.”

Sibal also highlighted how the Centre had paved the way for the development by suddenly revoking President’s rule early on Saturday morning without a cabinet recommendation.

Government sources have said the Prime Minister used his emergency powers to clear, without a cabinet meeting, the governor’s proposal for an end to central rule.

“If they have the majority, let them prove it immediately. If they don’t allow us to form the government, we will prove the majority tomorrow itself on the floor of the House,” Sibal said.

Senior advocate Abhishek Singhvi, appearing for the NCP and the Congress, argued that the governor should not have accepted Ajit’s claim of NCP support for Fadnavis since 41 NCP legislators had passed a resolution removing Ajit as legislature party leader.

The resolution came sometime after Ajit and Fadnavis had been sworn in.

Rohatgi questioned the petition’s maintainability on the ground that no fundamental right had been violated since forming a government is not a fundamental right of MLAs.

He cited how a bench headed by Justice Ramana had just a fortnight ago, while dealing with petitions moved by former Congress and JDS legislators from Karnataka contesting their disqualification, ruled that MLAs must approach the high court first.

Justice Ramana agreed that such an order was passed but underscored that the top court had heard the MLAs nevertheless.

Rohatgi argued that the courts should not interfere in the domains of the executive or the legislature, else a legislature might pass a resolution one day asking the Supreme Court to dispose of all pending cases within two years.

“We won’t be surprised tomorrow if such an order is passed by the legislature,” Justice Ramana joked.