Shiv Sena Crisis : Will Uddhav Thackeray's Decision To Resign Before Floor Test Become Crucial In Supreme Court Case?

Will the decision taken by the Uddhav Thackeray to resign on June 29, 2022, as the Chief Minister of Maharashtra before facing the floor test scheduled on the next day have any impact in the ongoing cases before the Supreme Court? 

The Constitution Bench which is hearing the matter raised this point on multiple occasions during the hearing held this week.

The pleas pertaining to the Maharashtra political crisis are being heard by a Constitution bench of the Supreme Court comprising CJI DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha.  Senior Advocate Kapil Sibal has concluded his arguments and Senior Advocate Abhishek Manu Singhvi commenced his arguments in favour of the Uddhav Thackeray faction. After submitting that the new government had been elected because of the two orders passed by the court, Dr AM Singhvi sought the restoration of the status quo ante. This resulted in a discussion between Dr Singhvi and the bench on what would have happened if the trust vote took place. 

The Supreme Court on 29th July, had refused to stay the floor test/trust vote by Maharashtra Governor, but had held that the outcome of the trust vote would be subject to the final decision of the court in the petitions before it. However, Uddhav Thackeray had resigned from the office of Maharashtra Chief Minister before the trust vote ever happened. In this context, Justice MR Shah asked–

"The order of 29th July was very clear that the floor test of the 30th would be subject to the ultimate outcome. Now in that case(when Uddhav resigned before floor test), where is the question of status quo ante?" 

Dr AM Singhvi responded to the same stating–

"Your lordships court is a court of substance. Paramount is substance. It is true that on that day on 29th, nobody would know what would have politically happened on 30th. It is true that the technical word used is trust vote. But, what was allowed to go on was a test on the floor which is inevitable if 39 (MLAs of Shinde group) vote against us. The one and only forgone conclusion of suffering the humiliation of the vote is to give up in advance. We are in the real world. There is no arithmetic. There is no science or physics which can change the result on 30th. How can there be a trust vote with tainted pool?  One argument was that this trust vote was completely futile because you had not excluded the tainted fruit. The other argument was that if your lordships had stayed that(Speaker's disqualification notices), stay this also."

At this juncture, CJI DY Chandrachud remarked–

“If you had faced the trust vote and lost, it would have been clear if these 39 people made a difference. The voting pattern would show if these 39 affected the trust vote. If you lost the trust vote only because of these 39, you'd know that if they were disqualified, you'd win.”

However, Singhvi, furthering his arguments, responded by saying that the pool for trust vote was "tainted" and the fact remained that nothing happened on 30th June and Thackeray did not face the trust vote. However, the court was not considering that, but was considering the issue of legal errors. He contended that the acts of Shinde group- such as refusing to attend the party meeting, forming government with the BJP, voting for BJP candidate in the Speaker election- will amount to giving up of party membership as per Paragraph 2(1)(a) of the tenth schedule.

He added–

“3rd of July, the same trust vote happened at the speaker's election. These 39 odd voted the other way. Each of these acts has been held as direct violation of tenth schedule. On 4th July a trust vote happened in affirmative for Mr Shinde. So my lords have ample proof...On 21st and 22nd June, they (Shinde group) did not attend the party meeting despite being directed to! Which of these will not fall foul of 2(1)(a) of the tenth schedule? What can be the defence? That these photos are forged? All media reports are forged? I didn't go to the governor's house? In Nabam Rebia, the court turned the clock back with eight months lapsed in between and the status quo ante was restored. Most of the government was changed. They went with the BJP to the governor, in my case.”

The bench had raised a similar question to Senior Advocate Kapil Sibal too, who has stated that– "Had I not resigned, the trust vote would have happened and the same thing would have happened....In substance, it's the same thing."

Dr AM Singhvi also argued that the fundamental principle of interpretation of constitution was that if the Parliament deletes something from the Constitution, full weight had to be given to that intention of deletion. He said–

“Para 3(which accepted split as a defence) deletion is not a small thing. Why this case is bizarre is because there has been at least two circumventions of that deletion directly by high constitutional authorities.”

He added that it was clear that the governor had acted on the presumption of a split. He said–

“There is no basis on which your lordships can reconcile the factual invitation and oath giving on one hand with the legal deletion of para 3. The two are irreconcilable. That's a constitutional sin.”

Proceeding with his arguments, Dr Singhvi then stated that even the Election Commission, in its order, had recognised the split between the party, despite there existing no such split. He also provided the bench with context of the case and stated –

“Every assembly has a rule- you cannot bring repetitive no confidence motions. The processes in assembly have to be allowed to work out without external intervention. Not even an attempt (of a no confidence motion)! If you had confidence, you would move the no confidence. There is no role of the governor till now. It's a second separate question on facts- what the governor did see or not see. The governor has no locus.”

While referring to Governors as “creatures of political connections”, he contended that the two orders of the Supreme Court– first, the negative injunction passed on 27.06.2022 stating that the speaker couldn't determine disqualification; and second the positive injunction of 29.06.2022 allowing the trust vote to be held, resulted in the formation of the government. He said–

“Let us not see this case in an abstract. Let's see it in reality- let's smell the constitutional coffee. Absent these two orders, your lordships could not have a change of government.”

In furtherance of his arguments, he highlighted the importance of respecting co-equal organs for the courts. He said–

“Respect and mutual balance between judicial and legislative organs is the other legal principle which has to be kept in mind. There may be a rare situation where your lordships pass an interim order to maintain status quo. But your lordships are very sensitive in creating a status quo by an order. Here, a new status quo was created.”

Thus, he stated that applying the principle of actus curiae, the court could reverse the most intertwined situations to ensure that the act of court does not do any harm. When the bench asked him what remedy the court could provide in the case, he submitted–

“The remedy which is effective and real is the reversal of the status quo ante. The act of swearing-in is wrong and your lordships will ask for it to be done again. It would be a reversal of that oath. For the purity of process, the deputy speaker would decide what he would have decided before the injunction. Your lordships would apply the "but for" test.”

Dr Singhvi concluded his arguments by contending that if there was an initial wrong in a judicial order which was not in consonance with law, all subsequent consequences would fall through since the illegality strikes at the roots.

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