Subhash Kashyap says no legal justification to Shiv Sena’s challenge to Governor on 24-hour deadline

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November 12, 2019 5:06 PM

Maharashtra govt formation: Sena was earlier invited to stake claim to form the government but was given only 24 hours to show its numbers. Sena sought 72 more hours to get the required numbers but the Governor decided against it and went ahead to invite the NCP to show a willingness to form the government.

subhash kashyap, shiv sena, govt formation in maharashtra 2019, maharashtra govt formation 2019, maharashtra govt formation, govt in maharashtra, maharashtra govt news, maharashtra govt formation news, cm of maharashtra, maharashtra cm news, maharashtra news, maharashtra cm 2918, maharashtra cm update, maharashtra new cm, cm of maharashtra 2019, shiv sena bjp, shiv sena cm, shiv sena congress, shiv sena ncp, shiv sena ncp congress, shiv sena ncp congress alliance, uddhav thackeray cmSena has approached the Supreme Court alleging that the Governor has acted in a haste to deny it the opportunity to form the government. (PTI)

The Shiv Sena on Tuesday moved the Supreme Court against Governor Bhagat Singh Koshyari for not giving it enough time to get the numbers required to form the government in Maharashtra. Sena was earlier invited to stake claim to form the government but was given only 24 hours to show its numbers. Sena Youth President chief Aditya Thackeray sought 72 more hours to get the required numbers but the Governor decided against it and went ahead to invite the third-largest party, the NCP, to show a willingness to form the government.

Challenging the Governor’s denial of more time, Sena has approached the Supreme Court alleging that the Governor has acted in a haste to deny it the opportunity to form the government. It further said that the Governor is duty-bound to give sufficient time to a party to get the signatures.

Read Also | Maharashtra Govt Formation LIVE: Shiv Sena says Governor’s Prez rule recommendation ‘unreasonable, mala fide’

So, legally speaking, does the Sena have a case here against the Governor? Constitutional expert Subhash Kashyap explains the legal nuances and why the Sena may not have any sound legal ground to challenge the Governor on the issue of how much time he granted to them.

How fair is Sena’s demand for more time?

The Governor is expected to find out whether a party, at that point of time, is in a position to form the government. If they want time for horse-trading or purchase of legislators and say that they are working out formulas — this is not something that the Constitution envisages. So far as the constitution is concerned, the Governor needs to find out if anybody is willing to form the government at present. If they ask for more time, the Governor is entitled not to give any more time. The moment you say that you need 24 hours or 48 hours, that means you are admitting that at present you are not in a position to form the government. And the Governor is only concerned about whether you have the numbers at present — what will happen in the future is not relevant.

Can Sena-NCP approach Governor again even after President’s rule is imposed?

Yes, and then the Governor can consider whether the situation has changed. As and when the situation changes, the President’s rule can be revoked and the government can be formed. However, it will also depend on the terms of the proclamation. President’s rule can be revoked only when the Assembly is kept under suspended animation. But if the proclamation contains the provision of dissolution of Assembly then a fresh election has to be held within six months.

Can Sena-NCP go to SC with letters of support if not given time by the Governor?

I don’t think there would be any legal justification. Anybody can go to court, but I do not think that there would be any legal or constitutional justification. These parties have already gone to Governor and expressed their inability to form the government. The Governor already gave them time and asked them to form the government but all three of them one after another expressed that they were not in a position to form the government at present. Those who are asking for more time are indirectly saying that they can’t form the government and need more time.

If tomorrow or the day after, these parties claim that they have required numbers. What happens then?

There is no provision in the Constitution for anybody claiming — the provision in the Constitution is that the Chief Minister is appointed by the Governor. So it is the Governor’s responsibility to appoint somebody as Chief Minister and it is for that purpose the Governor invited BJP first and Shiv Sena. NCP was the third. Since no one has agreed, the Governor is entitled to make a suitable recommendation.

Can the Supreme Court direct or instruct the Governor to give more time to parties to show support?

No. There is no such provision and there will be no justification. What Supreme Court can do is for Supreme Court to say. But I don’t think any such direction would be proper or legal.

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