The Supreme Court on Thursday invalidated the Maharashtra governor’s decision asking then chief minister Uddhav Thackeray to face a floor test last year and flagged a flurry of errors during the political drama that toppled the Maha Vikas Aghadi (MVA) government, but refused to put Uddhav back in the saddle because he voluntarily resigned instead of facing the trust vote in the assembly.
Though it does not change the power dynamic in Maharashtra, the judgment of the five-judge bench found fault in steps taken by then governor Bhagat Singh Koshyari in ordering the floor test, by speaker Rahul Narwekar in recognising the Eknath Shinde group as the real Shiv Sena, and by Thackeray for quitting as CM without facing the trust vote. While analysts and the Uddhav faction saw the judgement as a moral victory and claimed that it proved the illegality of the current government in the state, the BJP-Sena faction currently ruling the state seemed relieved and celebrated the judgement which keeps it in power.
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“This court cannot quash a resignation that has been submitted voluntarily. Had Mr Thackeray refrained from resigning from the post of the chief minister, this court could have considered the grant of the remedy of reinstating the government headed by him,” said the Constitution bench, headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, adding the status quo ante (situation that existed before) cannot be restored after Thackeray chose not to face the floor test.
But court made two key legal points — the floor test cannot be used as a medium to resolve internal party disputes by governors, who are not empowered under the Constitution or any law to enter the political arena and play a role in party disputes. And that the political party, not the legislative party, is the authority to issue whips to its members and appoint the leader of the legislative party and the chief whip in the House.
The verdict marks a new turn in the political saga which began shortly after Shinde and a clutch of Sena lawmakers went incommunicado in the evening of June 20. The ensuing political crisis saw more legislators joining the rebel-led group over the next few days, before the governor called for a floor test, one that Thursday’s judgement made clear he had no business calling. Thackeray moved the Supreme Court, but after the top court refused to suspend the trust vote, he resigned. The next day, Shinde took oath as chief minister with support from the Bharatiya Janata Party (BJP), and Devendra Fadnavis was appointed as deputy CM. Since then, Thackeray’s problems have only mounted, especially after the Election Commission of India (ECI) decided to award the Sena name and its iconic bow-and-arrow symbol to Shinde.
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The bench, which also comprised justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha, divided the political upheaval in the Maharashtra last year into two periods — events that led to Thackeray’s resignation on June 29 and the subsequent developments.
Thus, even as it declared that Koshyari was “not justified” in asking Thackeray to face the floor test since he had no “objective material” to construe that the MVA government had lost the majority, it found nothing wrong with Koshyari inviting Shinde to form the new government on June 30 on the basis of a letter of support from BJP MLAs.
After Thackeray resigned on June 29, the bench noted that the post of the CM fell vacant. “The leader of the party (Devendra Fadnavis) that had returned the highest number of candidates to the state assembly extended support on behalf of the party to Mr Shinde. Thus, the decision of the governor, dated June 30, inviting Mr Shinde to form the government was justified,” the bench underlined.
The court junked Thackeray’s contention that Shinde was barred from becoming the CM since there was a disqualification petition pending against him under the anti-defection law when he was invited to form the government. It said that the mere institution of a disqualification petition cannot render an MLA ineligible, adding that Shinde will cease to be the CM only if the speaker finally decides the plea against him.
The 141-page unanimous verdict was welcomed by both factions of the Shiv Sena, with Thackeray calling for the resignation of the current government, and Shinde saying his decision to form the government with the BJP had got the stamp of approval from the apex court.
Adversely commenting on Koshyari’s mandate to Thackeray on the floor test, the Constitution bench said that the exercise of discretion by him in this case was not in accordance with the law since the governor drew an inference that a letter from the Shinde camp complaining against Thackeray amounted to withdrawal of support from the MVA government.
“The communication expressing discontent on the part of some MLAs is not sufficient for the governor to call for a floor test. Once a government is democratically elected in accordance with law, there is a presumption that it enjoys the confidence of the House…The governor had no objective material on the basis of which he could doubt the confidence of the incumbent government,” it said.
The court went into granular detail to clarify the position on floor tests, the role of the governor, and the distinction between the powers of political and legislative parties, in the backdrop of the anti-defection law.
“When the anti-defection law seeks to curb defections from a political party, it is only a logical corollary to recognise that the power to appoint a whip vests with the political party. To hold that it is the legislature party which appoints the whip would be to sever the figurative umbilical cord which connects a member of the House to the political party,” said the bench, adding a constitutional court cannot be barred from inquiring into the validity of the action of the speaker recognising the whip.
Based on this principle, the Constitution bench declared the decision of Narwekar, the BJP leader who was elected as speaker on July 3 after Shinde took over as CM, to appoint Shinde’s supporter Bharat Gogawale as the new whip illegal. It also quashed the appointment of Shinde as the leader of the Shiv Sena legislative party in the House on the grounds that Narwekar failed to conduct an enquiry into the claims of the rival factions before him and deciding whether it was a decision of the real Shiv Sena.
“The speaker must only recognise the whip appointed by the political party. The decision of the Speaker recognising Mr Gogawale as the chief whip of the Shiv Sena is illegal because the recognition was based on the resolution of a faction of the SSLP (legislature party) without undertaking an exercise to determine if it was the decision of the political party,” it noted.
The court said that Narwekar will recognise the new chief whip and leader of the legislative party afresh “with reference to the provisions of the party constitution, after conducting an enquiry in this regard and in keeping with the principles discussed in this judgement.” The bench, however, clarified that the recognition of the original political party by the Speaker for the purposes of appointing whip or deciding disqualification petitions will have no bearing on the proceedings before the Election Commission regarding the symbol dispute.
Narwekar was also entrusted by the bench with deciding the disqualification petitions pending against both Shinde and Thackeray groups. While Thackeray urged the court to decide the disqualification petitions by itself because of the alleged bias of the BJP leader, the Constitution bench ruled that the question of disqualification ought to be adjudicated by the constitutional authority concerned, namely the Speaker of the legislative assembly, by following the procedure prescribed.
“Therefore, this court is of the opinion that the Speaker of the Maharashtra legislative assembly is the appropriate constitutional authority to decide the question of disqualification under the Tenth Schedule,” it added.
Drawing the curtain on a series of litigation arising from both camps — at least for now — the top court found no fault with a decision of its two-judge bench in June when it declined to stay the floor test. “This court cannot stay the proceedings of the House until the disqualification petitions are decided. To do so would amount to interfering with the proceedings of the House,” it held.
The decision was welcomed by all political parties in Maharashtra.
Thackeray said he may have been wrong to resign but added that those who “back-stabbed” him had no right to question him. “If the current Maharashtra CM and deputy CM have any ethics, then they should resign after the SC ruling and face elections,” Thackeray added.
But Shinde rejected this demand. “The government we formed was within the legal and constitutional framework. The Supreme Court has now put its stamp on it,” he said. Fadnavis said Thackeray resigned out of shame.
The Nationalist Congress Party (NCP), an ally of Thackeray, said the Shinde government had lost the moral right to continue. “Though the Shinde government survived, it has lost the moral right to remain in power because the court has explained how all the decisions taken by (the then) governor were wrong,” said NCP state chief Jayant Patil.
