Shinde survives, but SC calls out ex-governor’s floor test move

The Apex Court has expressed its disapproval of the then Maharashtra Governor Bhagat Singh Koshyari’s move to call for a floor test to ascertain whether the Shinde or the Thackeray faction was in a majority without a no-confidence motion being passed, writes Mudit Mathur

A constitutional bench of five judges of the Supreme Court held that Uddhav Thackeray cannot be reinstated as chief minister of Maharashtra because he did not face the floor test in the assembly and had tendered his resignation. “Former Maharashtra Governor Bhagat Singh Koshyari was not justified in calling upon Thackeray to prove his majority on the floor of the House because he did not have reasons based on objective material before him, to reach the conclusion that Thackeray had lost the confidence of the House,” It ruled.

“The political imbroglio in Maharashtra arose as a result of party differences within the Shiv Sena. However, the floor test cannot be used as a medium to resolve internal party disputes or intra party disputes. Dissent and disagreement within a political party must be resolved in accordance with the remedies prescribed under the party constitution, or through any other methods that the party chooses to opt for. There is a marked difference between a party not supporting a government, and individuals within a party expressing their discontent with their party leadership and functioning,” a bench of CJI Dr Dhananjaya Y Chandrachud and Justices M.R. Shah, Krishna Murari, Hima Kohli and Pamidighantam Sri Narasimha unanimously observed.

The Governor’s decision directing for a floor test to ascertain whether the Shinde or Thackeray factions were in a majority without a no-confidence motion being passed was held to be not justified but after the resignation of Uddhav Thackeray he was justified in inviting Eknath Shinde to form government. Neither the Constitution nor the law empowers the governor to enter the political arena to play a role either in inter-party or intra-party disputes by using the floor test as a means to resolve intra-party or intra-party disputes.

“Even if it is assumed these MLAs wanted to exit the government, they constituted only a faction,” Chief Justice of India D.Y. Chandrachud declared in open court, making it mandatory for a no confidence motion to be passed against the government to justify a floor test which precipitated Thackeray’s resignation.

The Supreme Court held that the decision of former Maharashtra Governor Bhagat Singh Koshyari to order a floor test based on the request of 34 MLAs of the Eknath Shinde faction was incorrect since Koshyari did not have enough objective material before him to conclude that the then Chief Minister Uddhav Thackeray had lost the confidence of the House.

The bench further said, “The resolution on which the governor relied did not contain any indication that the MLAs wished to exit 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.” It added that the governor ought to apply his mind to the communication (or any other material) before him to assess whether a government has lost the confidence of the House.

“We use the term ‘opinion’ to mean satisfaction based on objective criteria and not the subjective satisfaction of the governor,” the court said. It added that the MLAs did not express their desire to withdraw support from the MVA government in the resolution dated June 21, 2022, and even if it is assumed that they had implied that they intended to exit from the government, they only constituted a faction of the Shiv Sena Legislature Party (SSLP) and were, at the most, indicating their dissatisfaction with the course of action adopted by their party.

But on the vital issue as to whether it is the Eknath Shinde faction or the Uddhav Thackeray faction which constitutes the real Shiv Sena, the Supreme Court said it was the Speaker (Rahul Narwekar) and the Election Commission which has to decide which faction is the real Shiv Sena. The Court refrained from making an opinion in view of the pending challenge before it over the Election Commission’s order.

The bench left the decision on disqualification petitions against rebel Shiv Sena MLAs on the Speaker of the legislative assembly in a reasonable period, saying, “This Court cannot ordinarily adjudicate petitions for disqualification under the 10th Schedule in the first instance. There are no extraordinary circumstances in the instant case that warrant the exercise of jurisdiction by this Court to adjudicate disqualification petitions.”

Issue of Speaker’s power referred to larger bench

The Constitution Bench has referred to a larger bench the issue relating to the speaker’s powers as laid down in the 2016 judgement in the Nabam Rebia case. The court said that the Nabam Rebia judgment did not decide on whether a speaker against whom a disqualification notice was pending could decide on disqualification petitions against MLAs. The court framed the question for decision by a larger bench: “Whether notice of removal of speaker stops him from deciding disqualification of members?”
The top court also dealt with the question of whip and said a political party and not a legislature party appoints its whip and leader in the House. It said a speaker must only recognise the whip appointed by a political party and, in this case, recognition of Bharat Gogawale of the Shinde faction as the whip of the Shiv Sena in the Maharashtra Assembly was “contrary to law”.

“Test of legislative majority will be futile in assessing which faction is the real Shiv Sena. The observation was made while discussing the issue whether the Election Commission of India should defer its decision as to which group is entitled to the official party symbol as per the Election Symbols (Reservation and Allotment) Order till the Speaker decides the disqualification proceedings.”

“The ECI is a constitutionally entrenched institution which is entrusted with the function of superintendence of and control over the electoral process. The ECI, which is a constitutional authority, cannot be prevented from performing its constitutional duties for an indefinite period of time. Proceedings before one constitutional authority cannot be halted in anticipation of the decision of another constitutional authority,” it observed.

During the course of the discussion, the bench, after referring to the tests which are adopted by the Election Commission to decide rival claims under the Symbols Order, observed: “In arriving at this decision, it is not necessary for the ECI to rely on the test of majority in the legislature alone. In cases such as the present one, it would be futile to assess which group enjoys a majority in the legislature. Rather, the ECI must look to other tests in order to reach a conclusion under Paragraph 15 of the Symbols Order. The other tests may include an evaluation of the majority in the organisational wings of the political party, an analysis of the provisions of the party constitution, or any other appropriate test.”

It is interesting to mention that the Election Commission’s decision to recognise Shinde group as the official Shiv Sena was substantially based on a single aspect – the legislative majority of Shinde group. In its order passed on February 17, the ECI said that it applied three tests in the case – aims and objects of the party constitution, party constitution and majority. The first two tests remained inconclusive. As regards the test of majority, the ECI said that it could not reach a conclusive finding regarding majority in the organisational wing of the party for both the groups. Therefore, the legislative majority test was the only concrete criteria. So, the decision favouring Shinde group was solely based on the number of MPs, MLAs, MLCs it had in the Parliament and State Assembly. Considering this fact, the Supreme Court’s observation regarding the futility of legislative majority test in this case is quite impactful.

The judgement highlights that the previous governor, speaker and Election Commission acted in partisan that was evidenced by the judges’ observation that the Speaker’s decision to appoint the Shinde group backed Gogawale as the whip of the Shiv Sena party was illegal. “Nothing in any of the communications relied on by the governor indicated that the dissatisfied MLAs wanted to withdraw support to the government,” the judges observed.

The present government did not come to power by legal means as they were helped by high constitutional functionaries like the Governor, the Election Commission and the then Speaker of the legislative assembly who all violated their constitutional oaths to be neutral. Whether the present Speaker will remain politically neutral while deciding the disqualification petitions remains to be seen.

The political reactions over the apex court ruling gave ammunition to the opposition parties to criticise misuse of constitutional office of governor for toppling the opposition-led state governments at the behest of top BJP leadership.


Morality and BJP are contradictory words: Sharad

After the apex court verdict, Nationalist Congress Party chief Sharad Pawar said that the responsibility for disqualification of MLAs has been given to the Speaker and they will present their position to the Speaker.  “The Speaker is an institution and it is their responsibility to protect the sanctity of the institution. Let’s see whether it is being respected.”

Echoing the verdict, Sharad Pawar added that he had said in his autobiography that Uddhav resigned without a fight. “But let bygones be bygones. We have started working with a new enthusiasm.”
The NCP chief added that morality and BJP are two contradictory words. “Maharashtra’s former governor was a perfect example of how to disrespect the institution. Thankfully, he is no longer in Maharashtra and it’s better not to talk about him. The CJI’s words will help us to explain to people about the misuse of authority,” he said.

Prevail upon Shinde govt: Uddhav to PM

Shiv Sena UBT chief and former Maharashtra chief minister Uddhav Thackeray has urged Prime Minister Narendra Modi to “tell your people to resign and ask them to face elections”, a day after the Supreme Court said that the then Governor, Bhagat Singh Koshyari’s decision to call for a floor test that ultimately toppled the MVA government was not in accordance with the law.

“There is a question over whether the election of the current speaker is legal or not? The legality of the speaker’s selection needs to be reviewed in context of the SC order.” Thackeray said that the SC in its decision has passed strictures on those who are hungry for power.

“The SC has also said that the way the governor has acted was wrong. The system of having a governor is respectable, but the way he has been functioning, there is a question whether this system of having a governor should be there or not. We should now take this issue to SC as well,” he said.

Uddhav said that his party will now demand that the Speaker should now give his decision without wasting time. “It’s a good omen that today, Nitish (Kumar) also has come here and the awaited SC decision has also come. Now protecting the democracy in the county is our duty,” he added.

Shinde govt has lost moral right to rule: Jayant Patil

The Eknath Shinde government in Maharashtra may have survived after the Supreme Court verdict but has lost the moral right to continue, Nationalist Congress Party leader (NCP) Jayant Patil said.
“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 the NCP state chief.

Patil said that now the onus is on the Assembly Speaker to work within the framework of the points mentioned by the top court. “The speaker has to decide at the earliest as the Supreme Court has put the ball in his court and he cannot procrastinate further,” he said. With this verdict, the top court has explained to the people that the episode that had taken place in Maharashtra was unconstitutional and illegal, he added.

Speaker should disqualify MLAs: Singhvi

The Speaker has to give a decision on the disqualification petitions in a time-bound manner. The Speaker should disqualify the MLAs. Only by doing this, the justice will be served: Abhishek Manu Singhvi, who argued for Uddhav Thackeray side in SC in Maharashtra political crisis case Abhishek Manu Singhvi, part of the legal team that represented Uddhav Thacekray’s side in the Supreme Court, asked what moral and legal right does this government have to continue for even a minute more when there are findings against the Governor, Speaker and the recognition of the whip.

“Every major substantive finding has been in favour of the side we were representing (Uddhav Thackeray camp). The Governor’s decision is wrong because it is based on irrelevant considerations,” he said, following the verdict.

SC verdict a slap for our opponents: Shinde

The chief minister Eknath Shinde said the Supreme Court verdict was “a slap for those who called the government illegal and unconstitutional” and described it as a seal of approval. His deputy, Devendra Fadnavis, called it a “victory for democracy and the mandate of the people” and said he was satisfied with the ruling.

In a joint press conference, they lashed out at (UBT) chief Uddhav Thackeray for saying he resigned as chief minister on moral grounds. “Thackeray quit the chief minister’s post because he knew he did not have the numbers and would lose the trust vote. He resigned because he was scared and ashamed,” said Fadnavis. There is no question of Shinde resigning since the apex court has validated their government.
“Where was Thackeray’s morality when he left the BJP-Shiv Sena alliance after winning the elections with us and joined the MVA alliance for the chief minister’s chair?” asked Fadnavis.

“You left your ideals for the chair while Shinde left his chair for his ideals,” he added. Shinde stressed that it was his party that safeguarded the Shiv Sena’s morality by going with BJP and respecting the 2019 mandate of the people. “We saved the bow and arrow symbol,” said Shinde.