'Governor Can't Enter Political Arena, Floor Test Not To Decide Intra-Party Disputes ' : Supreme Court Slams Maharashtra Governor

In relation to the Maharashtra political crisis, the Supreme Court today held that decision taken by the Governor to call for a floor test based on the rebellion of Eknath Shinde-led faction and to direct then CM Uddhav Thackeray to prove his majority on the floor of the House, was wrong.

A Constitution bench comprising Chief Justice of India DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha observed,

"The Governor had no objective material on the basis of which he could doubt the confidence of the incumbent government. 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. The Governor ought to apply his mind to the communication (or any other material) before him to assess whether the Government seemed to have lost the confidence of the House."

The bench was referring to resolution dated 21 June, 2022 which specified that some MLAs of the Shiv Sena Legislature Part (SSLP) were dissatisfied with the functioning of Uddhav-Thackeray-led MVA government. The Top Court also took note of a letter dated 25 June, 2022 sent by some MLAs of the Shiv Sena to the Governor, stating they “no longer wanted to be a part of the corrupt MVA government.”

Supreme Court said nothing in these communications indicated that the dissatisfied MLAs from the Shiv Sena intended to withdraw their support to the Chief Minister and the Council of Ministers.

"At the highest, the various communications expressed the fact that a faction of MLAs disagreed with some policy decisions of the party. The course of action they wished to adopt in order to air their grievances and redress them was, at the time the floor test was directed to be conducted, uncertain. Whether they would choose to enter deliberations with their colleagues in the House or in the political party, or mobilise the cadres, or resign from the Assembly in protest, or opt to merge with another party, was uncertain. Therefore, the Governor erred in relying upon the resolution signed by a faction of the SSLP MLAs to conclude that Mr. Thackeray had lost the support of the majority of the House," the 141-pages judgment authored by the CJI said.

The June 25 letter also sought restoration of security, allegedly withdrawn from MLAs illegally to coerce them into continuing to support the MVA government “against their free will.”

Top Court said lack of security to MLAs has no bearing on the question whether Government enjoys the confidence of the House, and that this was an extraneous reason that was considered by the Governor to conclude that a floor test was required. "The appropriate response of the Governor in such cases is to ensure that the security that they are lawfully entitled to continues to be provided to them, if it has been removed," it said.

The Governor had also taken note of another letter dated June 21, 2022, addressed by now Maharashtra CM Eknath Shinde to the Deputy Speaker stating that the appointment of Ajay Choudhari as the Group Leader in his placed, was illegal. Constitution bench said the Governor erred in forming his opinion on the validity of proceedings of the legislature, which is exclusively within the domain of the legislature itself or in certain circumstances within the domain of Courts."In any event, the contents of the letter did not indicate anything to suggest that the then-Chief Minister Mr. Thackeray had lost the confidence of the House," the bench added.

Basis these letters, the Supreme Court acknowledged that there were some internal conflicts within the party. However, it said 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."

Governor can't enter political arena

The bench cautioned that Governor could not have entered the internal party dispute by ordering the floor test, particularly in absence of any "objective material" to dislodge the presumption of confidence of House ingrained in a democratically elected government. It said letters by some MLAs (or even by then Leader of Opposition in this case) for a direction to the Chief Minister to prove his majority does not, taken alone, amount to a relevant reason to call for a floor test

"Neither the Constitution nor the laws enacted by Parliament provide for a mechanism by which disputes amongst members of a particular political party can be settled. They certainly do not empower the Governor to enter the political arena and play a role (however minute) either in inter-party disputes or in intra-party disputes. It follows from this that the Governor cannot act upon an inference that he has drawn that a section of the Shiv Sena wished to withdraw their support to the Government on the floor of the House," it held.

The Court emphasized that the discretion vested in the Governor to call for a floor test is not unfettered, and must be exercised with circumspection, in accordance with the limits placed on it by law. "He (Governor) is a constitutional functionary who derives his authority from the Constitution. This being the case, the Governor must be cognizant of the constitutional bounds of the power vested in him. He cannot exercise a power that is not conferred on him by the Constitution or a law made under it."

It added, "The power of the Governor to act without the aid and advice of the Council of Ministers is of an extraordinary nature. The exercise of such power has ramifications on parliamentary democracy. Hence, the ambit of the exercise of such power by the Governor must be calibrated to meet the exigencies of situations where the Governor is satisfied on the basis of objective material that there is sufficient cause to warrant the exercise of their extraordinary power. The discretion to call for a floor test is not an unfettered discretion but one that must be exercised with circumspection, in accordance with the limits placed on it by law."

The Court placed strong reliance on the MP Political Crisis case (Shivraj Singh Chouhan v. Union of India), which held that the decision to call for a floor test should be based on objective material and reasons which are relevant and germane to the exercise of discretion, and not extraneous to it. The Court emphasised that the Governor should not use their discretionary power to destabilise or displace democratically elected governments.

Thirty-four MLAs of the Shiv Sena had passed a resolution on 21 June 2022 reaffirming that Eknath Shinde “continues to be” the Group Leader of the SSLP. The resolution also cancelled the appointment of Sunil Prabhu as the Chief Whip, and appointed Bharat Gogawale in his place. The signatories also expressed their discontent and dissatisfaction with the Shiv Sena for forming the Government in alliance with the INC and the NCP.

On 28 June 2022, the Governor received letters from the Leader of Opposition at the time, Devendra Fadnavis, and seven MLAs who were elected as independent candidates requesting him to direct Thackeray to prove his majority on the floor of the House. On the same day, the Governor issued a communication to Thackeray, directing him to prove his majority on the floor of the House on 30 June 2022.

Top Court today said though the Governor's decision calling for floor test was wrong, it cannot order status quo ante and reinstate Uddhav Thackeray government as Thackeray 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.

Eknath Shinde faction represented by Mr. Harish Salve, Mr. Mahesh Jethmalani, Mr. Neeraj Kishan Kaul, Mr. Maninder Singh - Senior Advocates along with Mr. Chirag Shah, Mr. Utsav Trivedi, Mr. Himanshu Sachdeva, Ms. Manini Roy, Mr. Piyush Tiwari and Ms. Chaitali Jugran