President Kovind on Tuesday, 12 November, approved the imposition of President’s Rule in Maharashtra. The Governor of the state, Bhagat Singh Koshyari, had earlier sent a report to the President, saying that it is a situation that merits a proclamation of President's Rule under Article 356 of the Constitution.
Did the Governor get it right? Does the situation merit President's Rule in Maharashtra? Could the Shiv Sena's petition in the Supreme Court challenging the Governor's rejection of an extension of time to form a government succeed?
There is little direct precedent on each of these questions, but the SR Bommai judgment of the apex court in 1994 offers some answers.
Conduct of Floor Test
Essentially, the Supreme Court held that when it comes to formation of the government, the Governor's individual thoughts about whether the parties can form a government cannot be the basis for deciding whom to call to form a government – failure of which obviously leads to President's Rule.
The judgment says that the deciding factor in that case is the conduct of a floor test. On that basis, it could be said that the Governor got it wrong in the case of Maharashtra as no floor test has been conducted.
However, the Governor’s argument will be that he was willing to conduct a floor test but nobody was willing to stand for one.
The SS-NCP-Cong combine can argue that reasonable time needs to be given to sort out their alliance and be ready for a floor test, but it is not clear what law would support them for this.
If we look at what happened in Goa and Karnataka recently, the SC ordered floor tests within short periods of time: 24-48 hours. Given the past precedent, the logical approach would be for the apex court to order the conduct of a floor test within 24-48 hours, by which time the SS will need to seal its alliance. The court will need to decide if the requests for time to do so that were made by the SS and the NCP till now were unreasonable and a sham.
Proclamation of President’s Rule
Another possible spanner in the works for the new alliance will be if the proclamation of President's Rule comes through. If there is no midnight hearing of the court tonight like in Karnataka's case, the matter will only be heard on Wednesday morning, 13 November.
As the Cabinet has already approved the idea, the President could have issued the proclamation by then.
If that happens, fresh paperwork will need to be filed, including grounds for reversing the President’s order, not just what the Governor has done.
This is from a procedural point of view, and could also be substantive, as under Article 356, the Governor's report is not the only thing the President can rely on to declare President's Rule, it can be information from other sources as well.
As a result, even if the Governor's report is considered to have been wrongly sent, if the cabinet has submitted its own reasons for Article 356 to be triggered, then these will need to be challenged as well.
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