The Supreme Court on Monday said it will pass an order at 10.30 am on Tuesday on the issue of floor test for the Maharashtra government led by Devendra Fadnavis whose swearing-in has been challenged by Shiv Sena-Nationalist Congress-Party-Congress combine.
The order by a bench of justices N V Ramana, Ashok Bhushan and Sanjiv Khanna is keenly awaited as the combine has sought advancement of the floor test for which the BJP-led government was granted 14 days on November 23 by Governor Bhagat Singh Koshyari.
The deadline for the floor test was apprised by Solicitor General Tushar Mehta and senior advocate Mukul Rohatgi, who was representing Fadnavis.
In the House of 288-member Maharashtra Assembly, BJP is the single-largest party with 105 MLAs, followed by the Shiv Sena (56 MLAs), NCP (54 MLAs) and Congress (44 MLAs)
The combine was pressing for the floor test on Monday itself, which was opposed by Fadnavis and Deputy Chief Minister Ajit Pawar.
Mehta, appearing for the Centre and the secretary to Governor, said: "The Governor was immune to the proceedings in the apex court."
He said the BJP had the support of all 54 NCP MLAs to form the government and asked for 2-3 days to file a reply to the combine's plea by asserting that the Governor had, in his absolute discretion, invited the largest party to form the government on November 23.
"The Governor was not supposed to conduct a roving and fishing inquiry to ascertain which party had the numbers to form government," he said.
After perusing Koshyari's letter inviting Fadnavis, the bench said it has to be decided whether the chief minister enjoyed majority on the floor of the House.
Mehta said the Governor had invited the Shiv Sena, the BJP and the NCP for forming the government and President's rule was imposed only after they failed.
Senior advocate Maninder Singh, appearing for Ajit Pawar, told the bench that the Governor had rightly invited Fadnavis to form government.
"I am the NCP", Singh said on behalf of Ajit Pawar. "There is nothing to contradict my list. I was authorised to lend support on the day I gave that letter. I will resolve disputes within my party but this petition must end now."
Senior advocate Kapil Sibal, appearing for the Sena, referred to a presser of the three parties, where Uddhav Thackeray was declared the combine's CM face in Maharashtra.
"Where was a national emergency to revoke the President's rule at 5.27 am and the CM being administered oath at 8 am the next morning," he said.
"The combine has the affidavits of 154 MLAs supporting it. If the BJP has the numbers, it should be asked to prove majority within 24 hours," he said.
Senior advocate A M Singhvi, appearing for NCP and Congress, said "it was a fraud of the worst kind" and asked whether a single NCP MLA told Ajit Pawar of pledging support to him.
Mehta submitted the letters of the Governor and Fadnavis as asked on Sunday by the bench, which said on Monday it was not considering the combine's plea that they be invited to form government.
Rohatgi said pre-poll alliance partners from both sides had turned foes.
He said the NCP, through its legislative party leader Ajit Pawar, had switched over to pre-poll opponent BJP, leaving his uncle Sharad Pawar, who joined hands with the Sena, which was the NCP's pre-poll opponent.
Rohatgi said Fadnavis had Ajit Pawar's letter of support of 170 MLAs. "It is nobody's case that the documents submitted by Fadnavis to the Governor are forged".
Rohatgi said that some kind of a feud was going on in the Pawar family.
"One Pawar is with me, another Pawar is here in the Supreme Court," he said, adding that the combine was unnecessarily alleging that some kind of horse-trading was going on.
"In fact, till Friday, they were indulging in horse trading," he added.
"Now, the question is that can this court say whether a floor test can be ordered within a particular time-frame," Rohatgi said.
"The combine is asking the Supreme Court to decide how the Governor and the assembly should act," he said, adding that it could not interfere with the House procedure, which is regulated by Assembly rules.
"The attack on Governor is completely unfounded. Governor in his letter has asked for proving the majority. Given the fact that there is no alternative, should this Court act in appellate jurisdiction and say that it should not be 10 days but 3 days.
"Governor has absolute discretion in choosing a person. Floor test is imperative. It can happen at various points of time. It is the discretion of the Speaker," Rohatgi argued.
Mehta said nobody was disputing that a floor test was an ultimate test, and no party could say it had to be conducted in 24 hours. He also questioned whether the apex court could monitor the proceedings of the House, which was constitutionally barred.
The combine said there was a prima facie case for passing an interim order. "What was the urgency for revocation of President's rule and giving oath to Fadnavis as chief minister? Is there anything on record to show urgency?," Sibal and Singhvi asked. "If the BJP has the majority, why is it worried? I am happy to lose on the floor of the assembly."
Singhvi said the letters to the Governor had no mention of even a single MLA of NCP supporting BJP. "This is perjury. This is fraud on democracy", he submitted, which was opposed by Rohatgi.
Singhvi said he raised perjury argument to "shock the conscience" of the court. He also submitted there have been instances where court directed test to be conducted in 24/48 hours "to preserve purity of democracy".