The Shiv Sena infighting and political crisis in Maharashtra led to cases being filed in the Supreme Court. Recently, the court while making an oral observation asked to know whether the Governor can call for a floor test in case of internal dissatisfaction within a party. To this, Solicitor General Tushar Mehta responded by drawing attention to the Supreme Court’s judgment in the Rameshwar Prasad vs Union of India (2005) case, in which the extent of the Governor’s powers to dissolve the Assembly was defined.
But how is this case related to the present-day Shiv Sena crisis? To understand the relation, we need to understand as to what had led to the Rameshwar Prasad case. It was during February 2005 a situation of hung Legislative Assembly arose in Bihar as neither any party nor any alliance reached the required majority of 122 seats in the 243-member House. Then the NDA, comprising the BJP and Nitish Kumar’s JD(U) had won 92 seats, Lalu Prasad’s RJD had won 75 seats and late Ram Vilas Paswan’s LJP 29 seats and the Congress had won 10 seats.
Subsequently, the then Governor Buta Singh held a number of meetings with various political parties only to conclude that no party or alliance was in a position to reach a majority or form government. This was mainly since the LJP was not clear about joining any particular alliance. This resulted in Governor Buta Singh writing to the then President Dr APJ Abdul Kalam on March 6, 2005, recommending President’s Rule in Bihar (Article 365) and also recommending keeping the Assembly in “suspended animation”. Next day, President’s Rule was imposed. However in the meantime, 17 Independent MLAs and three small parties extended their support to the NDA for forming government.
This led to the first report by the Governor dated April 27, 2005, which reported about serious attempts to cobble a majority by winning over MLAs by ‘various means’ like posts and money. In this report, it was recommended to hold fresh elections in the State. Subsequently, the second report was sent on May 21, 2005, wherein an observation was given that the LJP has leaned in favour of the JD(U) and it was recommended to dissolve the Assembly and hold fresh elections. The reports got prompt response from the Union Cabinet and they were immediately forwarded to the President for his assent and the Assembly was dissolved on May 23, 2005. And as the Bihar Assembly was dissolved, widespread state-wide protests were held by JD(U) and BJP.
This was when Rameshwar Prasad, MLA from the Sandesh Assembly seat, approached the Supreme Court along with three other MLAs, challenging the constitutionality of the dissolution of the Assembly and prayed that Presidential Proclamation of dissolution be struck down since it was “unconstitutional”. However in the intervening period on September 3, 2005 while the petitions before SC were still pending, the Election Commission of India announced fresh elections in Bihar in four phases between October 18 and November 19, 2005.
This created a state of confusion as while the petitions were pending, the outcome of the election could possibly further complicate the situation. However, a Constitution Bench headed by then Chief Justice YK Sabharwal delivered its verdict on October 7, 2005 after six days of marathon hearing wherein it struck down the President’s Proclamation which dissolved the Assembly, terming it as unconstitutional. However interestingly, the court avoided restoring the Bihar Assembly since the elections were a few days away.
The court held, “The Governor, a high Constitutional functionary, is required to be kept out from the controversies like disqualification of members of a Legislative Assembly and, therefore, there are provisions like Article 192(2) in the Constitution providing for Governor obtaining the opinion of the Election Commission and acting according to such opinion in the constitutional scheme of things. Similar provision in so far as member of Parliament is concerned, being in Article 103(2) of the Constitution.”
The court further said that it could not “remain a silent spectator watching the subversion of the Constitution”. The court held the Governor as the main player in the unconstitutional act but also expressed its displeasure on the the Union Council of Ministers as it should have verified the facts stated in the Governor’s report and shouldn’t have acted by “hurriedly accepting” the report as “a gospel truth”.
The court in this case also observed, “The Governor has misled the Council of Ministers which led to aid and advice being given by the Council of Ministers to the President leading to the issue of the impugned Proclamation”. The court deplored the action of the Governor as a “mere pretence”, and observed that the main objective was to “keep away a political party from staking a claim to form the Government”.
Now, coming back to the instant case, then Maharashtra Governor Bhagat Singh Koshyari used his powers to order a floor test, over which then Chief Minister Uddhav Thackeray resigned apprehending that he might fall short of numbers. Then a majority of MLAs went over to the faction of Shiv Senaled by current Chief Minister Eknath Shinde.
So, even if we take the judgment in the Rameshwar Prasad case as a precedent, there is nothing wrong in the Shiva Sena case if the Governor for reasons believed so and ordered floor test and afterwards the formation of a new legitimate government was a natural consequence in the constitutional scheme of things. Otherwise, it would have resulted in overriding and overlooking of the majority. In the Rameshwar Prasad case, the Governor was in clear error by acting unilaterally without offering opportunity to parties staking claim to form government from proving majority, which is not the same in the Maharashtra/ Shiva Sena case.
(The writer is an Addl. Central Government Standing Counsel, CAT, Cuttack Bench, Consulting Editor-Legal Affairs and Public Policy, The Pioneer, Bhubaneswar and a Distinguished Adjunct Professor of Law and Media Studies, School of Mass Communication, KIIT University. Views are personal)