New Delhi: On Tuesday morning, the Supreme Court bench of Justices N.V.Ramana, Ashok Bhushan and Sanjiv Khanna, is expected to pronounce its interim order in Shiv Sena and others v Union of India. The writ petition filed by the Shiv Sena, Nationalist Congress Party and Indian National Congress wants the apex court to quash the Maharashtra governor’s action inviting Devendra Fadnavis to form the government in the early hours of November 23 on the grounds that it was unconstitutional, arbitrary, illegal, void ab initio, and violative of Article 14 of the constitution.The petition also seeks an appropriate direction to the governor to invite the Maha Vikas Aghadi alliance comprising these three parties, claiming the support of more than 144 MLAs, to form the government under the leadership of Uddhav Thackeray. Finally, the petitioners want the court to pass any other order or direction as it deems fit in the facts of the present case and ‘in the interest of justice’.Based on the hearings before the bench on Sunday and Monday, it is clear that the short question which the bench is expected answer on Tuesday is when the state assembly should hold a floor test to determine whether the Fadnavis government indeed has majority support as the BJP has claimed. Going by the precedent set in the Karnataka case last year, the court is likely to a direct floor test within a period of 24 hours.On May 18, 2018, under identical circumstances in Karnataka – when the action of the Governor Vajubhai Vala in swearing in B.S. Yediyurappa as the chief minister even though the BJP fell short of a majority in the assembly after the elections was challenged – the Supreme Court ordered an immediate confidence vote in the state assembly. As a result, Yeddyurappa admitted that he lacked a majority and resigned on the floor of the house before the floor test could even be held.As Yeddyurappa discovered, the timing of the floor test proved crucial in determining whether or not an incumbent chief minister could command a majority in the house following a fractured mandate in the elections.Though he lacked the numbers, the Supreme Court bench comprising Justices A.K.Sikri, S.A. Bobde, and Ashok Bhushan – which held a special hearing on the wee hours of May 17, 2018 on the same issue – did not interfere with his oath taking ceremony a day earlier. The bench reasoned that it was not powerless to reverse the process if it found that the petitioners’ arguments carried weight.Of the judges who decided the matter in 2018, Justice Bobde is now Chief Justice of India while Justice Bhushan is on the Maharashtra bench.As in Maharashtra this time around, the Karnataka governor had given Yeddyurappa 15 days to prove his majority in the assembly. But the order by the Justice Sikri bench demonstrated that conducting a floor test within 24 hours was not just feasible but also desirable in order to correctly test the majority strength of the incumbent chief minister. Implicit in the bench’s decision was the acknowledgment that any delay in holding the floor test could distort the mandate of the people by giving an opportunity to the leader with minority support in the assembly to use the time available to cobble up a majority – through the engineering of defections.The bench’s order in the Karnataka case, therefore, raises the question of whether the Justice Ramana-led bench has already given more time than warranted to the Fadnavis government in fulfilling the floor test, by reserving its orders on Monday, when the legal precedent clearly favours a floor test within 24 hours. Even if the bench on Tuesday gives Fadnavis 24 hours to hold the floor test, it would have effectively given him 48 hours to do so – notwithstanding whether the extra time benefits the BJP during the floor test or not.The governor is empowered by Article 164 of the constitution to decide who should be sworn in as chief minister after elections are held. He can exercise this power in his own discretion, i.e. without the aid and advice of the chief minister, but the Supreme Court has held that this discretion is not immune from judicial review.In Rameshwar Prasad v Union of India (2006), the Supreme Court’s constitution bench went into the validity of the proclamation of president’s rule and the dissolution of the Bihar assembly in 2005. As in Maharashtra, assembly elections in Bihar that year had resulted in a fractured mandate. Following a report from the then governor, Buta Singh, the Centre brought the state under president’s rule, and after a few months, dissolved the assembly before it could meet even once. The Supreme Court declared the dissolution unconstitutional, while expressing its inability to restore the assembly in view of the election schedule for the next assembly elections that the Election Commission had already announced in the meantime.The Supreme Court’s majority view in this case was that if a political party with the support of other political parties or other MLAs staked claim to form a government, and satisfied the governor about its ability to form a majority government, the governor could not override the claim because of his subjective assessment that the majority was cobbled together by illegal and unethical means. Buta Singh resigned as Bihar governor following the Supreme Court’s judgment in this case.The majority judges opined: “The minority governments are not unknown. It is also not unknown that the governor, in a given circumstance, may not accept the claim to form the government, if satisfied that the party or the group staking claim would not be able to provide to the state a stable government. It is also not unknown that despite various differences of perception, the party, group or MLAs may still not opt to take a step which may lead to the fall of the government for various reasons, including their being not prepared to face the elections. These and many other imponderables can result in MLAs belonging to even different political parties [coming] together. It does not necessarily lead to assumption of allurement and horse-trading.”The court minced no words in indicting the governor and also the Union cabinet of the day:“In absence of the relevant material much less due to verification, the report of the governor has to be treated as the personal ipse dixit of the governor. The drastic and extreme action under Article 356 cannot be justified on mere ipse dixit, suspicion, whims, and fancies of the governor… The governor may be the main player, but the council of ministers [i.e. Union cabinet] should have verified the facts stated in the report of the governor before hurriedly accepting it as a gospel truth as to what the governor stated. Clearly, the governor has misled the council of ministers, which led to aid and advice being given by the council of ministers to the president leading to the issue of the impugned proclamation.”Bommai precedentIn the S.R. Bommai case (1994), the Supreme Court had to pronounce on the validity of dismissal of six state governments by the Centre. In Karnataka, Meghalaya, and Nagaland, the governors of these states had recommended dismissal of the state governments on the basis of their satisfaction that they had lost the majority support in the respective assemblies. The Supreme Court’s nine-judge bench held the imposition of president’s rule in these states unconstitutional because the governors did not give the dismissed chief ministers an opportunity for a floor test, and hastily invoked their powers under Article 356.The factual matrix in Maharashtra may be different – in the sense that the governor hastily invoked his powers under Article 164, without fulfilling his prima facie responsibility to ensure that Fadnavis would be able to clear the floor test given the fractured mandate following the assembly elections, and the possibility of emergence of post-poll alliance excluding the BJP. But the principles laid down in Bommai and Rameshwar Prasad are relevant in judging the action of the Maharashtra governor.