Shiv Sena Case| Discontent Within Party Won't Justify Governor Calling For Trust Vote : Supreme Court Says During Hearing

The Constitution bench of Supreme Court, while hearing the matter concerning the rift between the Uddhav Thackeray and the Eknath Shinde factions in Shivsena, discussed the powers and role of the Governor in calling for a trust vote. The bench comprising CJI DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha was hearing the arguments of the Solicitor General of India Tushar Mehta, who was representing the the Governor of Maharashtra.

Trust Vote not to determine leader of house, but to determine majority : CJI DY Chandrachud

Amongst the many important observations of the bench on the role and powers of the Governor, one query which was raised time and again was if the Governor had the power to call for a trust vote in the matter. CJI DY Chandrachud orally remarked–

"Suppose there is a policy difference in a party on whatever aspects. Can the governor merely on that say that you must prove your trust vote? The governor must equally be conscious of the fact that his calling for a trust vote may itself be a circumstance which may lead to toppling of a government."

SG Mehta argued that the Governor was provided with three things owing to which he called for a floor test. First, the resolution moved by 34 Shinde group MLAs reaffirming leadership of Eknath Shinde; second, the letter by 47 MLAs about violent threats issued by the Uddhav faction against them and; third, the letter by the leader of opposition regarding loss of confidence. To this, CJI Chandrachud said–

"The leader of the opposition will always write to the governor. Threat to security is not a ground for calling for trust vote. The only thing which survives is the resolution of the 34 MLAs. Can the governor call for the trust vote? Then you're virtually breaking the party. Looking at it in hindsight, they had lost the mathematical equation. They were not willing to disqualify 39 because it would be to their disadvantage. But now we're on governor's power. Governor should not enter into any area which precipitates the fall of a government".

CJI continued by saying that if there is discontent within the party, the dissidents can seek to change the leader, but that can't be a ground to change the government.

"The governor's responsibility is to ensure that a stable government is there. They(dissidents) have their remedies. They can vote the leader out by saying that the leader is not holding ethos of the party. Can the governor say that I'll ask them to prove now? It's a government which is formed, it's a functional government. Governor may actually precipitate the falling of government. That is very very serious for our democracy. This is irrespective of the numbers. It's clear they lost the numbers."

The discussion continued with the Chief Justice opining that the Governor could have waited till the Monsoon session which was going to take place soon. He said–

"When you place supplementary demands, that's the surest test, if they have to seek votes of the house. One aspect of a revenue measure and if the government doesn't get the vote- they're out."

Regarding the SG's contention concerning "violent threats" made to 47 members to continue supporting the Thackeray faction, CJI Chandrachud termed it as a "law and order situation" and stated that the Governor had already written to the Additional Chief Secretary to provide security to the said members and that is as far as his duty went. However, the SG argued that this was "too simplistic a view to look at it" and said–

"The governor is supposed to not be a mute spectator because the threats are not as a law and order situation. The threats are sent with a view to create an artificial majority. Not just threats, real attacks are taking place. This court has held that the governor is duty bound to hold a floor test in such cases. It might aggravate the situation but that's how democracy works. Therefore they say you can inherit leadership but you cannot inherit leadership qualities."

However, CJI DY Chandrachud did not seem convinced and remarked–

"You can never allow the governor to ask for a trust vote when there is absolutely nothing to shake the majority on the floor of the house. What is the trust vote for? The trust vote is not for determining who is to be your leader in the house. In a house of 288, you have 144. That's the purpose. If there's nothing to indicate that the 144 is disturbed, who will lead those 144 is alien to the governor! It may not have been Uddhav Thackeray. They could've elected someone else. The INC and the Sena could have said we're electing someone else. That is a matter for internal party discipline. That can never be for governor."

Discontent within the party no ground to call for trust vote

CJI said that there are well-settled precedents on Governor's power to call for a trust vote and none of them support the view that a trust vote can be called for merely because there is a discontent within the party. In the present case, the rebel faction never claimed that they left the Shiv Sena or joined any other party; they claim to be the Shiv Sena itself, CJI pointed out.

"If they continue to be members of Shiv Sena and Shiv Sena continues to have 55 or 56 members which it originally had...tell us one reason why he has to call for a floor test?", CJI asked.

"There is discontent within the party. This by itself will not justify the governor in calling a trust vote. Never. That's what our judgements say", CJI stated while asking how the resolution passed by the rebel MLAs affirming Shinde as the leader and appointing Bharat Gogawale as the party whip be the basis for a floor test.

Dissatisfaction within a party and loss of majority of government are two distinct things and one is not necessarily indicative of another, CJI said.

"The governor has to treat them as part of Shivsena irrespective of what their internal issue is. He cannot say that the letter given by these 34 is a ground for shaking the faith of the government.He has to take these 34 as forming a part of the Shivsena legislature party. And if they are a part of the Shivsena legislature party, where is the ground to say that there is a change in the position of trust in house?", CJI asked.

SG Mehta continued his line of argumentation and stated that running the government after losing the trust of the house was a sin to which the governor could not have been a party. He argued that whether it was floor test or a no-confidence motion - the result was the same. 

Also Read - Shiv Sena Case | Governor Can't Enter Into An Area Which Precipitates Government's Fall : Supreme Court Says During Hearing

Case Title: Subhash Desai v. Principal Secretary, Governor of Maharashtra And Ors. WP(C) No. 493/2022