The Supreme Court on Tuesday ordered an open ballot floor test before 5 pm on Wednesday for CM Devendra Fadnavis to prove his majority in the Maharashtra Assembly.
The apex court bench comprising Justices N V Ramana, Ashok Bhushan and Sanjiv Khanna also said the floor test should be conducted by a pro-tem Speaker and telecast live.
The court also directed Maharashtra Governor Bhagat Singh Koshyari to appoint the pro-tem Speaker immediately and ensure that all elected members of the house are sworn in on Wednesday itself.
"In the present case, the oath has not been administered to the newly-elected MLAs. In the present scenario to avoid horse-trading it is necessary to have a floor test to determine the majority in the house," the bench said.
"We are of the considered opinion that the Governor should ensure a floor test," it said.
The apex court concluded the brief proceeding by saying that replies to the main petition filed by the Shiv Sena-NCP-Congress combine against the governor's decision to swear Fadnavis as chief minister will be done in eight weeks.
The court said it was necessary to pass an interim order for a floor test to uphold democratic values and the citizens' rights to good governance.
It was imperative for the court to be cognisant of the prevailing circumstances, the bench added.
While calling it an interim order, the apex court bench also said that the broader issues regarding judicial review of the Governor's decision will be heard by it as well.
Keeping in mind constitutional morality, the bench observed that the oath has not been administered to the elected members even after a month of results being declared in the state.
All parties have been asked to provide responses and further submissions on these issues within eight weeks.
Earlier, a bench of Justices N V Ramana, Ashok Bhushan, and Sanjiv Khanna on Monday heard the arguments put forth by counsels appearing for Governor, Maharashtra BJP and other parties and reserved its order.
The petitions were filed after BJP's Devendra Fadnavis took oath for the second consecutive term as the state Chief Minister, with NCP's Ajit Pawar as his Deputy Chief Minister on Saturday morning.
This came when deliberations among Congress, NCP and Shiv Sena on the government formation had reached the final stage.
On the directions of the top court, Solicitor General Tushar Mehta, appearing for the Maharashtra Governor's office, handed over an original letter of Governor inviting BJP leader Devendra Fadnavis to form a government.
Mehta said that the Governor, in absolute discretion, invited the largest party [BJP] to form the government on November 23.
"Devendra Fadnavis staked claim following the letter of NCP's Ajit Pawar along with letters of support of 11 independent and other MLAs. The Governor then wrote to the President and requested for revocation of the President's Rule; Governor in his wisdom invited the leader of the largest party," he submitted.
The Solicitor General added that Fadnavis has the support of 170 MLAs. He also sought two-three days' time from the court to file a reply by asserting that he wants to place additional material on record.
Key arguments during the SC hearing:
Tushar Mehta, appearing for the office of Maharashtra Governor
The entire stable of the Shiv Sena had ditched their pre-poll alliance with the BJP and gone to the other side. An immediate floor test would serve as an impetus for horse-trading.
Maharashtra needs a stable government and President’s Rule cannot go on indefinitely. Ajit Pawar was earlier asked by BJP to join them to form the government, but he had then declined because of insufficient support from NCP MLAs.
Governor’s decision was sound as he received a letter from (Devendra) Fadnavis of support from 170 MLAs. The Governor cannot make a roving or fishing inquiry. The letter which showed numbers was the basis of the satisfaction of the Governor.
Can one party say that we have somehow managed the flock together and if the floor test doesn’t take place in 24 hours, they will go away?
Mukul Rohatgi, appearing for some BJP MLAs
One Pawar is with them. One Pawar is with me. It may be a family feud. It’s not me indulging in horse-trading. Look, my pre-poll partner goes away.
I go to the Governor with 170 MLAs to form the government. My claim is accepted. President’s rule is revoked. I am sworn in.
The floor test should be conducted after the election of the Speaker, and therefore, it should not be today or tomorrow but according to the rules. A correct thing should be done.
This court cannot venture into when the floor test would be held or direct how the House would function because in that case it would be like the Supreme Court was acting on appeal.
Governor acted bona fide and it is his discretion to give time for a floor test.
Kapil Sibal, arguing for Shiv Sena
For some, opportunities came knocking in the cover of the night. Let a floor test be conducted for all to see.
We have original affidavits here to show that Ajit Pawar was not authorised to represent the NCP. So hold a floor test. Let the oldest member of the House be made Protem Speaker. Let the floor test be video-recorded.
What was the great hurry to revoke President’s Rule at 5.57 in the morning? If he waited for so long, could he not have waited for another 24 hours? What was the national emergency?
The only reason it was done was because an alliance was announced at 7 pm.
Abhishek Manu Singhvi, appearing for NCP and Congress
This is a fraud of the worst kind on democracy. Does a single NCP MLA say they are ready to go join BJP?
Both sides agree to the floor test. Why should you wait for their reply to the affidavits now? The proof of the pudding is in the eating.
I am happy to lose on the floor of the House today. Why are you worried? (to SG Tushar Mehta).
Court-ordered floor test in 24 or 48 hours in earlier cases so as to preserve the purity of democracy.
It should shock the Court that somebody would get up and say, “I am NCP.” He (Ajit Pawar) has been removed as a Legislative Party leader.
Maninder Singh, arguing for Ajit Pawar
I am NCP. As the leader of the party, I am entitled to take a call on these issues.
He (Ajit Pawar) acted as the leader of the NCP legislative party on November 22. There was nothing to show otherwise on that day. The Governor acted in his discretion.
If the validity of the crucial documents was under a cloud, the petition stands a chance to be heard. But since there is nothing controversial in the letters before the Supreme Court, the petitioners have no case.
(With ANI and PTI inputs)