Mumbai: Shiv Sena, along with the Congress and Nationalist Congress Party have moved the Supreme Court against the Union government, Devendra Fadnavis and Ajit Pawar for the political fiasco that played out in Maharashtra on November 23.

The petition will be heard in court number 2 before a bench of Justices N.V. Ramana, Ashok Bhushan and Sanjiv Khanna at 11:30 am on Sunday. The court normally does not convene on the weekend so the Sunday listing is an indication of its urgency. The Congress and Shiv Sena will be represented by Kapil Sibal and Abhishek Manu Singhvi, The Wire has learned.

In the petition, filed through advocate on record (AoR) Sunil Fernandes at 8:23 pm on Saturday, the parties have accused the Maharashtra governor of favouring the BJP.

"The Hon’ble Governor on 11.11.2019, for reasons best known to him, declined to accommodate the request for three days and rejected the claim of the Shiv Sena to form the Government," the petition reads.

Sunil Fernandes told The Wire that the three parties had tried for an urgent hearing. "We had requested for a hearing tonight itself," he added.

The petition states that after comprehensive talks, the Shiv Sena, Congress and NCP had finalised a Common Minimum Programme for a post-poll alliance, which they had called the 'Maha Vikas Aghadi'.

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"On the evening of 22.11.2019 at about 7 pm, this alliance was announced at a press conference and it was further announced that it was unanimously agreed that Uddhav Thackeray was to be named as chief minister candidate of the Maha Vikas Aghadi and the alliance was staking claim to form Government on this basis," the petition reads.

But facing the prospect of a non-BJP government staking claim to power, the BJP in the intervening night of November 22 and 23, has "resorted to political machinations in an attempt to install a completely unconstitutional BJP government in the State".

"From the reports available in public, the Governor’s original travel plan to the Governor's conclave in the night of 22.11.2019 was cancelled. There is nothing in public domain as to how and in what manner Shri Devendra Fadnavis and/or the BJP had staked claim power between the intervening night of 22.11.2019 and 23.11.2019," the petition accuses.

The petition further alleges that there is no material in the public domain to show that Devendra Fadnavis had carried letters of support of 144 MLA’s - "which in any event was not legally possible to do."

The petitioners have categorically asserted that all the MLA’s of the Shiv Sena, NCP and Congress are completely and solidly with the alliance, except for Ajit Pawar.

The petitioners have accused the Governor, Bhagat Singh Koshyari, of acting in a "partisan manner" and "of having made a mockery of the high office of the Governor".

"It is respectfully submitted that the Governor’s actions between the intervening night of 22.11.2019 and 23.11.2019 culminating to the swearing in on the 23.11.2019 are a text book example of the Governor acting at the behest of a political party in power at the Centre," the petition has claimed.

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It further states that "the Governor has belittled the constitutional office of the Governor and has allowed himself to be a pawn in BJP’s illegal usurpation of power."

In 15 points, Sena, congress and NCP have explained their grounds for moving the Apex court. Some of the crucial points are:

• The impugned actions of the Governor in installing a minority BJP Government on November 22, is "ex facie illegal, unconstitutional and in the teeth of the well settled law," the petition claims.
• The action of the Governor in installing a minority government is "ex facie against the basic rule of law and the rule of parliamentary democracy," it says.
• No demonstration, either by letters of support or by parading of MLAs, has been done by the BJP to show they have the majority, the petition notes. The BJP clearly falls short of the halfway mark of 144. In any event, the BJP cannot get the support of majority through legal constitutional means in the face of the provisions of the Tenth Schedule. In these circumstances and in no event and in no circumstance could the Governor ‘anoint’ Fadnavis to be the chief minister and invite him to form the government, it alleges.
• The discretionary powers exercised by the governor are not beyond the pale of judicial review and any illegal and arbitrary decision taken in brazen disregard of constitutional provisions and conventions is liable to be interfered with and struck down by the court, it also adds.
• The petitioners are also praying for an immediate floor test within 24 hours to "avoid further horse trading and illegal manoeuvres to somehow cobble up a majority from the Maha Vikas Aghadi."

The petitioners, in their writ petition, have sought from the Supreme Court an immediate declaration of the governor's decision as "unconstitutional and arbitrary" and have also sought "an appropriate direction be given to the Governor to invite the alliance of 'Maha Vikas Aghadi' comprising of the Shiv Sena, Indian National Congress and the Nationalist Congress Party which has the support of more than 144 MLAs to form the Government under the leadership of Shri. Uddhav Thackeray".

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