Soli Sorabjee slams Maharashtra governor, Harish Salve says nothing wrong

NEW DELHI: Maharashtra governor BS Koshyari’s twin pre-dawn decisions — requesting revocation of President’s rule followed by administering oath to Devendra Fadnavis as CM — has raised several constitutional questions that left top constitutional experts like Soli J Sorabjee and Harish Salve taking divergent views.

Former attorney general Sorabjee, who had successfully argued in the Supreme Court against Bihar governor Buta Singh’s decision to reject NDA’s claim to form government, dissolve the state assembly and recommend imposition of President’s Rule in 2005, told TOI that the governor’s action was a “disgrace to the constitutional process” required to be followed for formation of government. He said, “The Governor has acted hastily. He should have waited for the NCP-Shiv Sena-Congress post-poll alliance to stake claim rather than hastily administer oath to Devendra Fadnavis.”

Sorabjee said, “Even now nothing has been lost for the NCP-Sena-Congress post-poll alliance. They can defeat Fadnavis-led government during the trust vote on the floor of the House and then stake claim to form government.”

However, senior advocate Harish Salve told TOI from London that the so-called post-poll alliance between NCP-Sena-Congress could not present the governor with an alternative and the governor had no means to ignore the late night development of Ajit Pawar, leader of NCP’s legislature party in Maharashtra, giving support letter to BJP.

“Let us not forget that BJP is the largest party in the House with 105 MLAs. It would have been against constitutional mandate to deny BJP-led post-poll coalition to form government if the Ajit Pawar has given letter of support to BJP. So it is now for the BJP-led coalition to prove its majority on the floor of the House. For the governor, what counts is his satisfaction about which coalition prima facie commands majority support in the House,” he said, and asked, “If NCP supports BJP, what is so horribly wrong about the governor’s decision.”

The Sarkaria Commission on Centre-state relations dealt with this issue and emphasised that “the governor, while going through the process of selection as described, should select a leader who, in his (governor’s) judgement, is most likely to command a majority in the Assembly. The Governor’s subjective judgement will play an important role.”

The Supreme Court in Rameshwar Prasad judgment in 2006 had said, “If a political party with the support of other political party or other MLA’s stakes claim to form a government and satisfies the governor about its majority to form a stable government, the governor cannot refuse formation of government and override the majority claim because of his subjective assessment that the majority was cobbled by illegal and unethical means. No such power has been vested with the governor. Such a power would be against the democratic principles of majority rule.”