The Shiv Sena-NCP-Congress combine on Sunday told the Supreme Court that Maharashtra chief minister Devendra Fadnavis should be directed to prove majority today itself or they be given an opportunity to form the government led by Uddhav Thackeray.
The combine claimed that they have the numbers to prove a majority in the House and that the governor's decision to invite Fadnavis was "unconstitutional" and "mala fide".
The post-poll alliance also questioned the manner in which President's rule was revoked at 5.17 am on the recommendation of the governor.
A bench headed by Justice N V Ramana said the petitioners have not challenged the withdrawal of the proclamation in their plea.
The bench, also comprising justices Ashok Bhushan and Sanjiv Khanna, was told by senior advocate Kapil Sibal, appearing for the Sena, that "the only thing the court can now do" is order for a floor test.
"If they believe they have the support of the House, they must be directed to prove it today itself. If they have the numbers they must prove it or allow us to prove the majority," Sibal said, while maintaining that the combine has the support of 145 MLAs, which is the magic number in the 288-member Maharashtra assembly .
Detailing the sequence of events, Sibal said that the pre-poll alliance of BJP-Shiv Sena broke down after the declaration of election result and the current situation involves a post-poll alliance of three parties Shiv Sena, NCP and Congress which were holding deliberation on government formations.
"On November 22, at 7 pm a press conference was held wherein we say that Shiv Sena, NCP and Congress have agreed on a Common Minimum Programme and we are going to stake our claim to form government which will be headed by Uddhav Thackeray. What happened thereafter was bizarre," he said.
Sibal added that it appears there was some "national emergency" as without any cabinet meeting the President's rule in Maharashtra was revoked at 5.17 am.
He referred to last year's Karnataka government formation case and said the apex court had directed a floor test within 24 hours and the same direction should be passed in this case also.
"We don't know how much time the governor has given them to prove majority. What letters were submitted to the governor, we don't know. There is nothing in the public domain," Sibal said, adding that "they want to have this intervening period for something else".
"We say we have the majority and we are willing to show it," he said.
Senior advocate Mukul Rohatgi, appearing for some BJP MLA and and two Independents questioned the maintainability of the petition filed by the alliance under Article 32 and said political parties cannot claim violation of their fundamental rights.
"Today, a government is there. Why is this hearing taking place on a Sunday, I have no idea," he said.
To this, the bench told Rohatgi, "It is the discretion of the Chief Justice of India. We have been nominated by the CJI to hear this matter and that is why we are hearing it".
Rohatgi strongly objected to one the prayers in the petition which sought the direction to the governor to invite the combine to form government and said, "They don't have any documents with them. Their petition is without any annexure. What kind of prayer is this?".
To this, Justice Ramana observed, "Nowadays, in this court sky is the limit. Anyone can ask for anything in the court".
The bench then observed that it was not aware of the orders or communications of the governor.
Rohatgi said that the court should give them two-three days time to place the relevant documents on record.
"They (combine) should have gone to the governor instead of disturbing the Supreme Court on the night of Saturday", he said, adding, "They were sleeping for three weeks and suddenly they came and say decide it today itself. What is this going on".
Rohatgi said time must be given to file appropriate replies and affidavits on their petition and "we should be allowed to spend our rest of Sunday in peace".
Senior advocate Abhishek Manu Singhvi, appearing for the NCP and the Congress, contended that a governor, before inviting anybody to form government, is obliged to satisfy himself on three grounds -- satisfaction based on written documents, written documents with signatures of MLAs and their physical verification.
He said that the NCP had held a meeting yesterday at 3.30 pm in which Ajit Pawar was removed as the legislative party leader and a resolution was signed by 41 MLAs.
While insisting on immediate floor test, Singhvi referred to an earlier apex court verdict and said it was necessary to prevent horse trading.
"How is it possible for anyone to take oath of chief minister yesterday and now shy away from floor test? According to me, the Supreme Court is not passing any adversarial order against anyone. Floor test is constitutional obligation of democracy", he said.
The top court asked the Centre to place before it on Monday morning the letters of Maharashtra Governor Bhagat Singh Koshyari inviting Fadnavis and of the BJP leader staking his claim to form the government in the state.
In an unprecedented hearing on a Sunday, the apex court, however, did not grant any interim relief to the Shiv Sena, NCP and Congress combine to direct the Fadnavis government to undertake floor test within 24 hours and rather said that this issue would be dealt with only after perusing the two letters on Monday.
