Maharashtra Case - Governor's Decision For Floor Test Wrong, But Uddhav Govt Can't Be Restored As He Resigned : Supreme Court

In the matter pertaining to the Shiv Sena rift, the Supreme Court Constitution bench held that it cannot order the restoration of the Uddhav Thackeray government as he resigned without facing floor test. Since Thackeray voluntarily resigned, the Court held that the Governor was right in inviting Ekanth Shinde form the government with the support of BJP.

"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", the Court held while observing that it cannot quash a resignation which was voluntarily tendered. 

However, the bench held that the Governor's earlier decision to order floor test for the Maha Vikas Aghadi government as well as the Speaker's decision to appoint the whip nominated by Shinde group were incorrect. The bench also referred the judgement in Nabam Rebia to a larger bench. 

The Constitution Bench comprising Chief Justice of India DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha had started hearing the matter on February 14 2023 and the judgement was reserved on March 16 2023. A summary of all arguments raised before the bench can be found here.

Speaker's Decision to appoint Gogawale as the whip illegal

The Supreme Court held that the Speaker's decision to appoint Mr. Gogawale (backed by the Shinde group) as the whip of the Shiv Sena party was illegal.  

"To hold that it is the legislative party which appoints the whip will mean severance of the umbilical chord with the political party. It means group of MLAs can disconnect from the political party. Whip appointed political party is crucial for tenth schedule," the bench stated. The bench remarked that the Speaker was aware of the emergence of two factions in the legislative party on 3 July 2022 when he appointed a new whip. The court stated–

"The Speaker did not attempt to identify which of the two persons - Mr.Prabhu or Mr. Gogawale- was the whip authorised by the political party. Speaker must recognise only the whip appointed by the political party."

The bench noted that no faction or a group could argue that they constituted the original party in defence of the disqualification proceedings. The defence of split is no longer available under the tenth schedule and any defence must be found within the tenth schedule as it currently stands.

Exercise of discretion by the Governor was not in accordance with the Constitution

At the outset, the court stated that if the Speaker and the government circumvent the no-confidence motion, the Governor would be justified in calling for a floor test without the aid and advise of the council of ministers. However, it stated that the assembly was not in session when Mr. Fadnavis wrote to the Government.

"The opposition parties did not issue any no-confidence motion. The Governor had no objective material to doubt the confidence of the Government...The resolution relied on by the Governor did not indicate that MLAs wanted to withdraw support. Even if it is assumed that the MLAs wanted to exit the government, they constituted only a faction."

Stating that floor test could not be used to resolve internal party disputes, the bench held that neither the Constitution nor the law empower the Governor to enter the political arena and play a role either in inter-party or intra-party disputes. It was held–

"Nothing in any of the communications relied on by the Governor indicated that the dissatisfied MLAs wanted to withdraw support to the Government. Governor erred in relying on the resolution of a faction of MLAs of Shiv Sena to conclude that Mr. Thackeray had lost support of the majority of MLAs. The security concerns expressed by MLAs have no bearing on the support of the Government. This was an extraneous consideration on which the Governor placed reliance on. Governor ought not to have relied on the letter...the letter did not indicate that Mr.Thackeray lost support. Mr.Fadnavis and the 7 MLAs could have moved for a no-confidence motion. Nothing prevented from doing that." 

Cannot restore Uddhav Thackeray government

Despite holding that the Governor and the Speaker erred, the court refused to restore the status quo ante as requested by the Thackeray faction. The Supreme Court held that it cannot order the restoration of the Uddhav Thackeray government as he voluntarily resigned without facing floor test. 

"Status quo ante cannot be restored as Mr.Thackeray did not face the floor test and tendered his resignation. Hence the Governor was justified in administering oath to Mr.Shinde with the support of the largest party BJP," held the court.

Judgement in Nabam Rebia referred to larger bench

The Chief Justice, pronouncing the order, stated that the following issue needed to be examined by a larger bench–

"Whether the issuance of a notice of intention to move a resolution for the removal of a speaker restrains them from adjudicating disqualification petitions under the tenth schedule of constitution?"

After referring the same to a larger bench, the court stated that the issue of Nabam Rebia did not strictly arise in the present proceedings.

Background

The batch included the petitions filed by members from the groups of Shinde and Thackeray over several issues. The first petition was filed by Eknath Shinde in June 2022 challenging the notices issued by the then Deputy Speaker against the rebels under the tenth schedule of the Constitution over alleged defection. Later, the Thackeray group filed petitions in the Supreme Court challenging the decision of the Maharashtra Governor to call for a trust vote, the swearing-in of Eknath Shinde as the Chief Minister of the Government with the backing of BJP, the election of new Speaker etc. 

From February 21, the bench started hearing the matter on merits. Senior Advocates Kapil Sibal, Dr. Abhishek Manu Singhvi, and Devadatt Kamat argued on behalf of the Uddhav side. Senior Advocates Neeraj Kishan Kaul, Harish Salve, Mahesh Jethmalani and Maninder Singh argued for the Shinde side. Solicitor General of India Tushar Mehta argued on behalf of the Maharashtra Governor.