“Introduce a little anarchy. Upset the established order, and everything becomes chaos.”

The Joker (Heath Ledger)

Is that what Maharashtra has become? A breeding ground for chaos? With what has been happening for the past few weeks I am unable to think otherwise. With there being no conclusion in government formation even after more than a fortnight since the results of the Assembly elections were announced on October 24, the political situation in Maharashtra seems to be precarious. With the single largest party in the new Assembly, indicating its unwillingness and inability to form the government in the state, BJP wished the Sena “good luck” if it wanted to form the government with the help of the opposition Congress and the NCP. However, what has happened in the past couple of days, it has made us think that it was more of a taunt.

Statistics on the political scenario in Maharashtra, it has a total of 288 Assembly seats. The BJP has bagged the highest number – 105 — but is not quite near the halfway mark of 144. The Sena has been able to manage 56 seats. The NCP and the Congress have 54 and 44 seats, respectively. While the BJP has been reaching out to Independents and smaller parties, it still does not have the numbers to form the government without Shiv Sena’s support. And while the Shiv Sena has been eyeing the chief minister’s post, it is not in a position to form the government without the BJP either, unless both the Congress and the NCP prop up a government formed by the Sena. [1] This was the situation until a few days ago, so much so that there were serious talks of forming the tripartite alliance.

However, even this alliance had not been well received by the people, as a voter from Maharashtra on Friday moved the Supreme Court against, what he called the “unholy post-poll alliance” between Shiv Sena, Nationalist Congress Party (NCP) and the Indian National Congress (INC). Surendraindra Bahadur Singh, a resident of Mumbai, had urged the court to restrain the Governor from inviting the three parties to form the government. “The Petition seeks to stop the unholy alliance between three political parties which have all fought against each other but are trying to form the government by joining hands thereby defeating the electoral mandate,” says the petition.[2]

Initially, it seemed unlikely that the three would reach a consensus as, until 12^th November, Shiv Sena had failed to garner support from both the NCP and Congress and NCP. Instead, they had asked for a three-day grace period to gather support. The Governor, however, it seemed, had other plans and expressed his doubts by sending a report on the provision of Article 356, stating his satisfaction that the governance of the state couldn’t be carried out in accordance with the provisions of the Constitution.

Article 356 – What is the significance of this provision of the Constitution in this anarchy? History seems to have repeated itself a third time in Maharashtra as the state has had two stints with once being for 112 days from February 17, 1980, and June 8, 1980, when the government was dismissed in spite of Pawar enjoying majority support in the Assembly, while the other one being between September 28, 2014, and October 31 of the same year, where the government was dismissed, since the Congress separated from its allies.

Article 356 has led to the shift from the arbitrary use of this power of transferring the control of a state to the Centre’s hands, to a step by step process laid down that must be followed and conditions met to activate this fail-safe.

Article 356 of the Constitution provides for the imposition of President’s Rule in a state in “case of failure of the constitutional machinery in the state”. As per the constitutional stipulation, it can be imposed in cases where the President, on receipt of a report from the Governor of the state or otherwise, is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution. However, this article was used as an excuse than a tool for stability, as it could be exercised by the Governor of the State in a subjective manner. This resulted in causing a latent fear in the mind of the Chief Minister of the state of “….the axe of Proclamation falling on him because he will not be sure whether he will remain in power or not and consequently he has to stand up every time from his seat without properly discharging his constitutional obligations and achieving the desired target in the interest of the State”.

The landmark judgment that turned this situation around, was S.R. Bommai v Union of India[3]. The verdict concluded that the power of the President to dismiss a State government was not absolute. And that he should exercise the power only after his proclamation (imposing his/her rule) is approved by both Houses of Parliament. The Court held that the President could only suspend the Legislative Assembly by suspending the provisions of the Constitution relating to the Legislative Assembly.[4] If approved by both Houses, the President’s Rule could continue for six months. It could be extended for a maximum of three years with the approval of the Parliament needed every six months. After the first six months, the EC would have to announce fresh polls in the state. However, if any political formulation emerged in the meantime that could prove its majority on the floor of the House, President’s Rule could be dissolved.

However, not always, both the Houses of Parliament agree on the proclamation of President Rule. In such cases, the Proclamation lapses at the end of the two-month period. The government which was dismissed revives. The Legislative Assembly, which may have been kept dormant gets reactivated. It is also to be noted that this proclamation is subject to judicial review, thus acting as another check on the arbitrary power of the Centre.

In the 2019 Maharashtra elections, after such a report was sent by the Governor, on being reviewed by the Union Cabinet, chaired by the Prime Minister, decided to recommend a proclamation under Article 356 (1), thereby imposing President’s rule in Maharashtra and keeping the Assembly in suspended animation. But what is interesting to note is that at 5:47 AM on 23^rd November, via a notification, President Rule imposed on 12^th November, was revoked. The Centre invoked Rule 12 of the Transaction of Business Rules, 1961, that empowered it to revoke the proclamation of President’s rule in Maharashtra without the prior approval of the Union Cabinet. Rule 12 states as follows: “Prime Minister may, in any case, or classes of cases permit or condone a departure from these rules, to the extent he deems necessary.”

Thus it would seem that the gravity of the situation was controlled in less than two weeks, which caused the revocation of Presidential Rule in less than a fortnight. Commendable performance on the efficiency of the Centre. Truly. Or perhaps it was all part of something bigger. Maybe I am just throwing darts in the dark. But what happened today, after this revocation, led me to rethink the ending of my article. By the time I had decided to wrap up my writeup, a notification on my cell, got my fingers flying across the keyboard. With more dramatic twists than Game of Thrones, in a major headliner, BJP’s Devendra Fadnavis on 23^rd November, returned as chief minister, propped up by Ajit Pawar of the Nationalist Congress Party (NCP), who was made his deputy. The development came just hours after the new alliance of the Shiv Sena, NCP and Congress reached a consensus that Sena chief Uddhav Thackeray will be their chief ministerial candidate.

Fadnavis and Ajit Pawar were sworn in by Governor Koshyari at 8 am at a hush-hush ceremony in Mumbai after dramatic midnight developments, leading to the lifting of President’s Rule in the state.

However, this has been seen as a backstabbing act by NCP, as the ‘traitor’, Ajit Pawar has joined hands with the BJP. According to the tri-partite, the new BJP-led dispensation would not pass the floor test, and that the Sena-NCP-Congress combine has the numbers and will form the government. On the other hand, 50 of 54 MLA’s of the NCP have shifted their allegiance to Pawar junior. Sharad Pawar has threatened them with being charged under the Anti Defection Law.

The Anti- Defection Law is an Act passed in 1985 to curb and make illegal political defections. The ramifications of this law were that the members who would defect would lose their membership, in any of the Houses of the Parliament, if they voted against their party or abstained from voting with the party (with some exceptions) and if they voluntarily resigned from the party.

In this case, though the MLA’s have not changed parties, yet they have decided to support another leadership. Ajit Pawar, after this move, has not been recognized as part of NCP and thus rallying with him, can be seen as a move against the party itself.

The tri-partite alliance further filed a petition in the apex-court (Shiv Sena v Union of India) to express their grievance which led to the doors of the Court opening to hear the plea against the Maharashtra government’s decision to swear in Devendra Fadnavis as the newly ushered CM. A special bench of Justices N V Ramana, Ashok Bhushan, and Sanjiv Khanna started the hearing at 11:30 AM on 24th November. The petition demanded that the newly sworn CM should immediately be able to perform the floor test and pass in order to remain in power. The NCP- Shiv Sena- Congress combine have asserted that, if given the chance, they would immediately pass the floor test as they had garnered enough support to do the same, so much so that in a show of strength, the combine had rallied in the Grand Hyatt Hotel at Mumbai, along with its 162 MLAs on 25^th November.

To clear further doubts, as to what a ‘floor test’ is, a brief explanation would be that it is a motion through which the government of the day seeks to know whether it still enjoys the confidence of the legislature. In this procedure, a CM appointed by the Governor can be asked to prove majority on the floor of the Legislative Assembly of the state. The present and voting members need to give a majority vote. This is done to ensure constitutional transparency. In S.R Bommai (supra), it was held that except under extreme conditions, a floor test would be the only way to determine whether the government currently in power, still enjoys the majority in the House. In exceptional conditions only, the Governor’s assessment will prompt any action. This was further reiterated by the Sarkaria Commission, Rajmannar Commission, Committee of five Governors.

Senior advocate Mukul Rohatgi, questioned the maintainability of the writ petition, claiming it should have been filed in the Bombay High Court, since, in this case, no political party’s Fundamental rights had been violated, which allowed it to file a writ petition under Article 32 of the constitution. He also further argued that under Article 361, both the Governor and the President had the discretion on whom to appoint as the CM or PM. Solicitor General, Tushar Mehta’s pleas for a two-day extension to prove majority was declined by the Apex Court and instead was directed to produce the recommendation letter asking for the revocation of Article 356 and inviting Fadnavis to form the government, along with the issuance of notices to the Maharashtra Government and the Centre.[5]

Production of the relevant documents was made and arguments made from both sides, was heard on 25^th November, the Apex Court declared that the floor test be performed within 24 hours as the mettle of their strength shall be checked on Tuesday morning[6]. On 26th November, various points were drawn up by the Court. One, the MLAs who had rallied behind Ajit Pawar, had shown support towards him and had nowhere given consent to allying with the BJP. Two, it was beyond the jurisdiction of the court to set dates for the floor test; the sole discretion lied with the Speaker. Three, since the elected members have yet to be sworn in, even though a month has passed after the elections, it is necessary to conduct the floor test as soon as possible, with the date set as 27^th November.[7]

Although the current government didn’t need even 24 hours to prove to the nation… that they truly were divided. Hours after the judgment, the Fadnavis- Pawar alliance succumbed and Ajit Pawar quit as deputy chief minister. Ajit not only took away his 54 MLAs but also BJP’s dream of ruling Maharashtra for the next half of the decade. Devendra Fadnavis was forced to announce his resignation, as he lost the majority with which he had risen to power[8].

Earlier the relief that Ajit Pawar had felt, when he was safely cocooned within the nestle of BJP’s support, that had, suspiciously led to all the nine irrigation scams that were registered against Ajit Pawar to be declared as being ‘unrelated’ to him, less than two days from joining the BJP, may turn out to be a cause of concern. Ajit Pawar now seems to be in a state of ‘Na Ghar ka na ghat ka.’

This has cleared the path for the tripartite combine to form the government, with or without Ajit Pawar, with Uddhav Thackeray at its helm. NCP’s Jayant Patil and Congress party’s Balasaheb Thorat will be his deputies[9]. Hopefully, this alliance will be able to keep it together. Pun intended.

Among other news, it seems that President Ram Nath Kovind may be put under the scanner, along with the new government demanding for the resignation of the Governor, even though he was given the clean chit by the Apex Court.

Maharashtra, in the last couple of weeks, has gone through a turmoil, recuperation from which will take time. As was said by Donna Karen “It’s all about finding the calm in the chaos”.

Read the full judgement here.

Endnotes

[1] https://www.news18.com/news/politics/what-lies-ahead-for-maharashtra-after-imposition-of-presidents-rule-2384017.html

[2] https://www.livelaw.in/top-stories/maharashtra-voter-moves-sc-against-unholy-alliance-between-shiv-sena-congress-ncp-150063

[3] (1994) 2 SCR 644

[4] https://www.thehindu.com/news/national/what-is-the-sr-bommai-case-and-why-is-it-quoted-often/article23929119.ece

[5] https://timesofindia.indiatimes.com/india/maharashtra-crisis-sc-issues-notice-to-centre-state-govt-hearing-to-continue-on-monday/articleshow/72206707.cms

[6] https://timesofindia.indiatimes.com/india/supreme-court-to-pronounce-order-tomorrow-on-maharashtra-govt-formation/articleshow/72217668.cms

[7] file:///C:/Users/dell/Downloads/Supremecourt.pdf

[8] https://www.indiatoday.in/india/story/supreme-court-orders-floor-test-in-maharashtra-ncp-congress-shiv-sena-bjp-reactions-live-updates-1622628-2019-11-26

[9] https://www.news18.com/news/politics/maharashtra-govt-formation-live-updates-mumbai-ajit-pawar-devendra-fadnavis-ncp-sharad-pawar-shiv-sena-2400341.html

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