Shivsena Case| Revisiting Questions Raised By Supreme Court On Governor's Decision

In the Shiv Sena case between Eknath Shinde and Uddhav Thackeray groups, the powers of the Governor were debated at lengths in the Supreme Court. The matter is under consideration before a bench comprising CJI DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha. During the course of the hearings, the bench posed multiple questions concerning the powers of the Governor to call for a trust vote and swear in a Chief Minister, particularly in cases where there are pending disqualification issues or where the numbers are stacked against the ruling government. The senior advocates representing the parties put forth their arguments, with the bench posing several hypothetical scenarios to test their positions.

Right at the outset, CJI DY Chandrachud had asked Senior Advocate Kapil Sibal, who appeared on behalf of the Thackeray faction, if the Governor would be justified in calling for a vote of confidence even if certain members were disqualified, assuming that the arithmetic was stacked against the government. 

CJI had asked–

"Would the Governor be justified in saying that, well, I still want to test the legitimacy of the Government after excluding these persons. Can he say that as a constitutional head, it appears that these people have now split. I'm not deciding that they are split because that's the discretion of the Speaker. Can the Governor now not say in a given case that look these facts now stare at me. I postulate that these people have incurred a disqualification. I don't treat these as members of the House at all. But therefore, because these people stand excluded and the strength of the ruling of the Government then falls down to the extent of the split, I want a trust vote."

Sibal responded that if the arithmetic was seriously stacked against the government, then the Governor could call for a vote of confidence. However, he added that it was not for the Governor to call for a trust vote on his own, but for the people in the house to approach the Governor. He argued that the Governor was not empowered in law to recognise rebel MLAs of a political party and legitimize their actions as the power to recognize who represents a political party fell within the domain of the Election Commission. He also contended that the fact that the Governor gave an audience to Eknath Shinde and gave him an oath as the Chief Minister raised questions about his actions, and that the Governor's priority should be to prevent the toppling of the government. He said–

"The numbers if stacked against the Government will go to the Governor and say that the Leader of the House has lost the confidence of the House. Then he will analyse that and call. But Governor will not do this. That's not his job. There is a sitting Chief Minister. It's an elected Government."

The CJI elaborated upon his query and said–

"But for that purpose, can the Governor not say, well I assume that they will be disqualified, therefore I need a show of strength on the floor of the House."

Sibal stated–

"Governor cannot say I'll assume this, I'll assume that. Governor's priority should be preventing toppling of government."

CJI Chandrachud had raised a similar question to Senior Advocate Dr AM Singhvi too, who was also appearing for the Thackeray faction, and asked him what the power of the Governor was he called for a trust vote post the formation of the Government and under what circumstances, if any, could the governor call for a trust vote after the government had been formed. This was in light of the submission made by the Thackeray faction that the Governor could only call for a trust vote before a government had been formed and no such powers existed with the governor after the formation of a government. Singhvi responded to the query by stating–

"Zero power, where there are pending disqualification issues in a running Government. Because your Lordships should not mix up the two. One is a normal vanilla running Government with no issue of disqualification, but one is a disqualification pending at two levels- pending before the speaker and pending before your lordships. My candid clear answer to your lordship's direct question is zero."

Opposing the submissions made the Thackeray faction, Senior Advocate NK Kaul, appearing on behalf of the Shinde faction had submitted that the Governor had no other alternative but to call for a trust vote owing to the majority expressing to him that they had lost confidence in Thackeray. He also contended that after Thackeray had resigned from the post of Chief Minister, the governor had to swear-in Shinde as the new Chief Minister to head a "headless government". 

CJI DY Chandrachud asked him–

"As a matter of propriety, should the Governor have invited Mr. Shinde to form the government?"

Kaul responded to the same by stating that if the Chief Minister resigned and a combination with majority emerged, there was nothing wrong with the Governor swearing in a new Chief Minister. He elaborated upon the same by stating–

"My Lords, may I, with respect say that if Chief Minister resigns and a combination emerges in the matter, what is wrong with it? This was a pre poll alliance also. In fact the change which came about later was with a party they had opposed all their lives...You can't have a headless state of affairs. You can't have no one there. And he asked them to face the floor test. It's not as if the governor after that gave them 20 days. Your Lordships have very often even frowned upon that when a long leeway is getting to form governments. He immediately said in a day that prove your majority. Speaker the next day, the government the day after."

The CJI also posed a hypothetical question to Kaul about whether the Governor would have been justified in calling for a trust vote if the Speaker had disqualified certain members of the House. He asked–

"If the Speaker had disqualified these persons they would have ceased to be members of the House. They would individually stand disqualified. But would the Governor have still been justified in calling for a trust vote?"

Kaul responded to the same stating that this was just a hypothetical situation and did not represent the reality, especially because Uddhav Thackeray resigned before the floor test.

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

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