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

While hearing the Shiv Sena case, a Constitution Bench of the Supreme Court raised important questions on the decision taken by the Maharashtra Governor to call for a floor test based on the rebellion of Eknath Shinde-led faction.

A bench comprising Chief Justice of India DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha was hearing the arguments raised by the Solicitor General of India Tushar Mehta, who was appearing for the Governor of Maharashtra. 

The primary contention raised by SG Mehta was that owing to the objective material provided to the Governor, which included the resolution moved by 34 Shinde group MLAs reaffirming leadership of  Eknath Shinde, the letter by 47 MLAs about violent threats issued by the Uddhav faction against them and, the letter by the leader of opposition, the Governor was duty bound to call for a floor test.

To his submissions, CJI DY Chandrachud asked if the Governor could call for a trust vote merely on the basis of the internal rebellion in a party. "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?", CJI observed. If there is a dissent within the party, the dissidents can seek to overthrow the leader through internal mechanism; but can they seek to change the government, the CJI asked.

"Mr Mehta, what happens is, people start ditching a government. The governors are willing allies saying- hold trust votes. So you give sanctity to this. This is a very sad spectacle in our democracy. This is irrespective of the morality of Shiv Sena having joined hands with INC and NCP", CJI said.

"Governor should not enter into any area which precipitates the fall of a government", CJI stated.

SG Mehta then stated that as per the judgement in Kihoto Hollohan v. Zachillhu & Ors, leader of a party was not an individual, but he represented a particular ideology. So, when a party breaks from its pre-poll alliance and forms a government by joining hands with its ideological rivals, there are possibilities of discontent within the party.

This resulted in the CJI questioning SG Mehta on why the ideological differences arose after three long years of the coalition. CJI DY Chandrachud orally remarked–

"But they broke bread for three years. They broke bread with INC and NCP for three years. What happened overnight after three years of happy marriage?"

While SG Mehta answered that it was not the Governor's function to answer the said question as it fell within the political arena, CJI Chandrachud pressed further and said that the governor had to ask himself this question. He remarked–

"You have to ask yourself this question...The governor has to ask himself this question. What were you doing for three years? If it was one month after the election takes place and they suddenly bypassed the BJP and joined INC, that's different. Three years you cohabit and suddenly, one fine day a group of 34 say there is discontent. You became ministers... Enjoying the spoils of office and suddenly one day you say you are discontent?"

However, the SG submitted that he would only be arguing on the law in the matter as the Governor could not enter a political debate.

The Chief Justice also highlighted that as per him, the governor had not taken two important things into account. He stated –

"One, insofar as the Congress and the NCP are concerned, there is no internal dissent in either INC or NCP. Congress had 44 members and NCP had 53 members. This is a block of 97. The 97 still continue to be a solid block. What is disturbed is out of 56 the Shivsena had, 34 have. Second thing governor has to bear in mind is that as of this date, there is not even a suggestion that Shivsena is going to team up with the BJP to form the government. He can't be oblivious to the fact that in a three party coalition, the dissent has taken place in one party of the three. The other two are steadfast in the coalition. They are not by any means sidekicks. They're almost at power."

CJI Chandrachud added that the government in question had been legitimately formed and was running. Thus, the governor could not assume to himself judicial power and come to the conclusion that the 34 MLAs would have to be excluded from consideration because they had incurred a disqualification under tenth schedule. He 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?"

As per the CJI, there was a distinction between dissatisfaction within a party and the loss of majority of government. He said–

"One is not necessarily indicative of another. In this situation, what was the factual basis for Governor to conclude that the government had lost majority?"

SG reiterated that it is the Constitutional responsibility of the Governor to ensure that the government enjoys the support of the house. In this regard, he placed reliance on the judgment in Shivraj Singh Chouhan vs State of Madhya Pradesh where the Supreme Court approved MP Governor's decision to call for a floor test following the breakaway in the then ruling Congress party.

Live updates from today's hearing can be read here.

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

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