A former Congress Minister on Wednesday moved the Bombay High Court, challenging the constitutional validity of the confidence vote won by the BJP Government on November 12 through a voice vote, on the ground that the Devendra Fadnavis dispensation had failed to prove its majority in the State Assembly.
A writ petition filed by former Congress Minister Mohammed Arif Naseem Khan was mentioned by his lawyer BA Desai before a Bench headed by Justice VM Kanade which slated the hearing of the petition for Friday (November 28).
Khan's is the fourth Public Interest litigation filed before the Bombay High Court challenging the formation of the Devendra Fadnavis-led BJP Government in the State.
Three other petitions are pending before Chief Justice Mohit Shah, who is scheduled to hear two previous petitions filed by social activists Ketan Tirodkar and Rajkumar Avasthi on November 28.
While Avasthi's petition seeks civil reliefs, Tirodkar's petition is a criminal side petition that's seeks CBI action against newly appointed Speaker Haribhau Bagde and the Chief Minister for getting "illegally" passing the confidence motion through a voice vote.
In his PIl, Khan charged the new BJP Government with having "subverted" parliamentary democracy and submitted that the act of the Speaker in declaring that the BJP had majority based on a voice vote "is fundamentally subsersive of the law declared by the Supreme Court".
Citing the Supreme Court judgements in the 1994 SR Bommai vs Union of India 1994, Khan argued that a floor test was "compulsory" to assess the strength of the ministry. "A Ministry cannot claim to have a strength of a majority without a floor test," the petitioner stated.
Khan also cited the 2005 verdict in Arjun Munda vs State of Jharkhandm and 1998 judgment Jagadambika Pal vs Union of India where the Supreme Court had directed that a floor test was necessary for proving a majority in the House..
"Under no circumstances the gross legality or violation by constitutional provisions can have protection under provisions of Article 122 of the Constitution. The action of the Speaker is not an irregularity of procedure, but a fundamental violation of the Constitution and basic principle of parliamentary government," Khan stated in his 18-page petition.
Article 122, cited by Khan, states that legislative proceedings are not protected from judicial scrutiny merely on the ground of irregularity of procedure, the petition said.
The petitioner stated that a voice vote did not determine the majority in the house as required under article 164(2) of the Constitution as the voice vote did not record how many votes were cast in favour of the motion and how many were against it and how many members abstained from voting.
Khan urged the court to issue "appropriate" directives to Chief Minister Fadnavis and his Council of Ministers to vacate their offices.
Speaker Bagde, it may be recalled, had on November 12 taken up first the confidence motion moved by BJP's MlA Ashish Shelar - which was listed as the third item on the business agenda of the Assembly and put the motion to a voice vote amidst protests by the Shiv Sena, which wanted the House to first elect the leader of the Opposition (loP).
The lOP's election had been listed as second item on the listed agenda. Amidst din created by the Sena MlAs who were demanding division of votes, the Speaker declared that the confidence motion as passed through a voice vote. Both the Congress and Sena hd alleged that the Speaker ignored their demand for division of votes and declared the confidence motion as passed.
In his PIl, Khan urged the court to "strike down" the voice vote obtained by the Government as "it is unconstitutional".