What and Why of the SC judgement on Maharashtra 2022 politics: Shiv Sena v/s Shiv Sena

On Thursday, May 11, a five member bench of the Supreme Court delivered a judgement challenging the questionable defection of elected MLAs of the previous Shiv Sena, a constituent of the Maharashtra Vikas Aghadi (MVA) government in Maharashtra. The judgement contested rigorously by both sides has been awaited eagerly by both sides, the former and current government of Maharashtra. The MVA government that ruled the state till June 2022 had challenged the validity of the current Eknath Shinde led government on various grounds, including pendency of disqualification proceedings against the MLAs who defected, the impartiality of the Speaker in deciding the disqualifications, the validity of the floor test directed by the Governor among others.

The five-judge bench of CJI DY Chandrachud, Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha unanimously gave a decision in a judgement authored by the CJI holding that the Governor was not justified in calling for a floor test. However, the court also held that since former chief minister Uddhav Thackeray did not face the floor test (that has now been held to have taken place in illegal circumstances!) and “voluntarily resigned” as the Chief Minister (CM), the court has not quashed this “voluntarily given resignation”. Had Thackeray faced the floor test, even if the actions of the Governor and speaker are violative of the law, the Court could have restored the status quo ante.

Much has been said in comment on this judgement that has a significant bearing on the overtly political (even partisan) role that Governors have played. Analyist and journalist Suhas Palshikar has publicly said that, “Very strictly speaking, hasn’t the SC actually said that formation of Shinde government doesn’t have legal basis? It may not have ordered removal of the government but once legality is gone, government must go too.”

In eight-odd hearings that took place to a full galaxy of senior advocates etc earlier, the Supreme Court bench had considered the practicalities of reinstating Uddhav Thackeray when he had already resigned after acknowledging that he did not have the required strength of MLAs in the house.

It was in June 2022, that a group of Shiv Sena MLAs led by strongman from Thane, Eknath Shinde rebelled against Udhav Thackeray – saying that the latter’s decision to align with the Congress and the Nationalist Congress Party went against the party’s Hindutva ideology. When it became evident that the rebel MLAs – with the support of the BJP-appointed governor – would call for a trust vote, the Shinde received disqualification notices from the then deputy speaker!

The original Shiv Sena led by Udhav Thackeray, that faction moved the Supreme Court to consider whether the rebels should be disqualified

The Background and Timeline

IN October 2019, after the then conducted Maharashtra State Assembly elections, the BJP got 106 seats, ShivSena got 56, NCP got 53 and INC got 44. In November 2019, the Shiv Sena, the NCP, and the INC formed a post-poll alliance which came to be known as the Maha Vikas Aghadi which then formed the government. This alliance broke a pre-poll alliance between the BJP and Shiv Sena that had fought the elections jointly.

During the entire period of the Covid 19 pandemic, it was chief minister, Udhav Thackeray’s sobre responsive governance that received wide approbation. The refusal to allow Maharashtra to erupt on communal lines, and the curb on hate speech was also noteworthy.

However, after some months of speculation before, serious efforts were made by the central BJP regime and former chief minister Devendra Phadnis to de-stabilise the government. In June 2022 news reports revealed that some MLAs who belonged to the Shiv Sena were meeting with leaders of the BJP. At this time, the office of the Speaker lay vacant, and the functions of the Speaker were being discharged by the Deputy Speaker, Mr. Narhari Zirwal. The issue of the sudden resignation of Nana Patole from the state assembly and the failure of the MVA to appoint a speaker has also been subsequently questioned, even criticised! The Maharashtra Assembly was without speaker since February 4 2021 and  Narhari Zirwal was discharging functions of a Speaker since then until July 3, 2022.

Thereafter, the Shiv Sena fractured into two factions: one led by the then Chief Minister, Mr. Uddhav Thackeray, and the other led by the Group Leader, Mr. Eknath Shinde. Each faction claimed to represent the “real” political party and passed various resolutions pertaining to the affairs of the original party.

Why the Supreme Court did not disqualify the MLAs

The petitioners have relied on Rajendra Singh Rana (supra) to urge that this Court should invoke its extraordinary jurisdiction and itself decide the question of disqualification against the respondent MLAs. Alternatively, it is urged that this Court should direct the Deputy Speaker, Mr. Zirwal, who was performing the functions of Speaker prior to July 3, 2022, to decide the disqualification petitions.

In Rajendra Singh Rana the Supreme Court had observed that it normally remit the matter to the Speaker or Chairman to take a proper decision in accordance with law. However, this Court decided to adjudicate the disqualification petitions since the Speaker failed to decide the same in a time bound manner as the petitions had remained pending for more than three years.

This Court should normally refrain from deciding disqualification petitions at the first instance, having due regard to constitutional intendment. Disqualification of a person for being a member of the House has drastic consequences for the member concerned and by extension, for the citizens of that constituency. Therefore, any question of disqualification ought to be decided by following the procedure established by law. Even in cases where the Speaker decides disqualification petitions without following the procedure established by law, this Court normally remands the disqualification petitions to the Speaker. Therefore, absent exceptional circumstances, the Speaker is the appropriate authority to adjudicate petitions for disqualification under the Tenth Schedule.

The petitioner however submitted that the disqualification proceedings should not be remanded to the Speaker since he has demonstrated himself to be incapable of acting fairly and impartially. in Shrimanth Balasaheb Patil v. Speaker, Karnataka Legislative Assembly (2020) 2 SCC 595 where it was observed that the Speaker does not deserve to be reposed with public trust and confidence if they are not able to dissociate from their political party and if they act contrary to the spirit of neutrality and independence.

The petitioners also challenged the decision of the Speaker to cancel the role/position of Shiv Sena’s Sunil Prabhu as the Chief Whip to argue that the Speaker is impartial. The Court stated that even if it sets aside this decision, it was not a sufficient reason to decide the disqualification petition. The court also discarded the argument that Deputy Speaker must be allowed to decide on disqualifications since the Deputy can perform duties of a Speaker only when office of the Speaker is vacant and the current Speaker was duly elected.

Finally however, the court, said that decision of the Speaker on the question of disqualification is subject to judicial review.

Constitutional sequence in deciding symbol

The petitioners also sought a constitutional sequence from the Court to state that the Election Commission of India (ECI) cannot decide upon which party should get the symbol until the Speaker decides upon the disqualification of members. This proposition was not accepted by the Court since, the Speaker’s order became final only after all avenues for appeal are/were exhausted and the time this would take is uncertain.

“The ECI, which is a constitutional authority, cannot be prevented from performing its constitutional duties for an indefinite period of time,” the court said (Para 148).

How does the ECI decide which party gets the main symbol after defection?

The court observed that in arriving at the decision of which party gets the symbol, “it is not necessary for the ECI to rely on the test of majority in the legislature alone. In cases such as the present one, it would be futile to assess which group enjoys a majority in the legislature. Rather, the ECI must look to other tests in order to reach a conclusion under Paragraph 15 of the Symbols Order.” (Para 150)

“The other tests may include an evaluation of the majority in the organisational wings of the political party, an analysis of the provisions of the party constitution, or any other appropriate test,” the court added. (Para 150)

The court also noted that nothing in the Symbols Order mandates use of a particular test for the ECI to reach a decision. “The ECI must apply a test which is best suited to the unique facts and circumstances of the case before it. The parties in the dispute before the ECI are free to propose a suitable test and the ECI may either apply one of the tests proposed or fashion a new test, as appropriate.” (Para 151)

“An evaluation of whether rival groups are adhering to the aims and objects of the party as incorporated in its constitution, and which of the rival groups is more in consonance with such aims and objects, is an entirely subjective exercise… The ECI must remain a neutral body and refrain from passing a subjective judgement on the approaches preferred by the rival factions.” (Para 153)

The court also clarified that the ECI decision on symbol has a prospective effect and it is not necessary that the decision of ECI must be consistent with the decision of the Speaker on deciding disqualification. Both can run concurrently and can be followed in letter and spirit.

Neither can the disqualification proceedings before the Speaker be stayed in anticipation of the ECI decision.

Can a ‘split’ in party be a defense for the disqualification of member?

The court has refuted this argument.

“No faction or group can argue that they constitute the original political party as a defense against disqualification on the ground of defection,” the court said in view of the deletion of Paragraph 3 under Tenth Schedule of the Constitution. “In cases where a split has occurred in a political party or in a legislature party, members of neither faction may validly raise the defence that they are the political party in the event that each faction files petitions for the disqualification of members of the other faction.” (Para 164)

The Speaker may be called upon to determine who the “real” political party is while adjudicating disqualification petitions. Since Paragraph 3 of Tenth Schedule has been deleted neither factions can be considered to constitute the original political party.

“In arriving at their decision, the Speaker must consider the constitution of the party as well as any other rules and regulations which specify the structure of the leadership of the party. If the rival groups submit two or more versions of the party constitution, the Speaker must consider the version which was submitted to the ECI before the rival factions emerged.” (Para 168)

This means that when the two parties appoint whips the Speaker decides which of the two represent the party.

“Thus, the adjudication of the Speaker on whether a member must be disqualified under Paragraph 2(1(b) would also depend on the decision of the Speaker recognising one of the two (or more) Whips.” (Para 169)

Role of the Governor as per the Constitution

Among the sharpest observations in the judgement are those regarding the role the Governor, Bhagat Singh Koshyari played in this unseemly political controversy. In Paragraph 193, the bench explains how the governor did not have any objective material before him to indicate that the incumbent government had lost the confidence of the house and that he should call for a floor test. Hence, the exercise of discretion by the governor, in this case, was not in accordance with the law, the bench held.

Powers of the Governor: The Executive power of the State is vested in the Governor. Article 163 requires the Governor to exercise their legislative and executive power on the aid and advice of the Council of Ministers. Article 163(2) empowers the Governor to exercise their discretionary powers when required by or under the Constitution. It is under this power that the Governor acted and directed Thackeray for a floor test. Article 174(1) provides that the Governor shall from time to time summon the House to meet at such time and place as they think fit, which means calling for a session of the House. Article 175(1) empowers the Governor to address the House and Article 175(2) permits the Governor to send messages to the House whether with respect to a pending Bill or otherwise.

The court held that the power of the Governor to summon the House under Article 174 must be exercised on the aid and advice of the Council of Ministers. At the same time, if the Speaker and the Government attempt to circumvent a no-confidence motion, the Governor would be justified in exercising the power under Article 174 without the aid and advice of the Council of Ministers.

Was the governor right in directing a floor test?

After the Governor received letters from the Leader of Opposition at the time, Mr. Devendra Fadnavis, and seven MLAs who were elected as independent candidates, requesting the floor test, the Governor, on June 28, 2022 issued a letter to Uddhav Thackeray. Thackeray challenged the same before the Supreme Court on Juen29 and the court refused to grant an interim stay on the floor test. Thus, Thackeray resigned as the Chief Minister.

The court, in Shivraj Singh Chouhan v. Union of India 2020) 17 SCC 1 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.

Rule 95 of the Maharashtra Legislative Assembly Rules stipulates that a member who wishes to move a motion of no-confidence in the Council of Ministers shall do so by a notice in writing. “If the Speaker and the Government attempt to circumvent a no-confidence motion, the Governor would be justified in exercising the power under Article 174 without the aid and advice of the Council of Ministers.” (Para 179)

“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.” (Para 181)

The court examined the reasons which led to the Governor’s decision to call for a floor test and observed that although the resolution of June 21, 2022 specified that some MLAs of the SSLP were dissatisfied with the functioning of the MVA government, it does not record their intention to withdraw support from the Government and some of these were even Ministers int hat government. On the basis of this resolution the Governor concluded that “a majority of the Shiv Sena MLAs have given a clear indication … that they intend to exit from the Maha Vikas Aghadi Government.” (Para 184)

Even the opposition party did not issue a notice for no-confidence motion against the MVA government.

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… Once a government is democratically elected in accordance with law, there is a presumption that it enjoys the confidence of the House. There must exist some objective material to dislodge this presumption. (Para 186)

The political imbroglio in Maharashtra arose as a result of party differences within the Shiv Sena. However, 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. (Para 188)

Nothing in any of the communications relied upon by the Governor indicates 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. 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. (Para 190)

The Governor also relied upon the letter dated June 25, 2022 from 38 SSLP members claiming that the security provided to them and to their families was illegally withdrawn. 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 (Para 191).

The third communication that the Governor relied on is the letter dated June 21, 2022 addressed by Eknath Shinde to the Deputy Speaker stating that the appointment of Ajay Choudhari was illegal. The court held that this was within the domain of the legislature and discretionary power of the Governor under Article 163 of the Constitution is limited to situations where a constitutional provision expressly provides for it. 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. (Para 192)

The Governor also relied upon the letters written by Mr. Fadnavis and seven ‘independent’ MLAs, calling upon him to direct Mr. Thackeray to prove his majority on the floor of the House. The court opined that Fadnavis and other could have just moved a motion of no-confidence. A request made by some MLAS for CM to prove majority does not amount to a relevant and germane reason to call for a floor test. Hence, the exercise of discretion by the Governor in this case was not in accordance with law. (Para 193)

Why was Thackeray not reinstated?

The main reason behind why the court did not reinstate the previous government like it had in S R Bommai v. Union of India (1994) 3 SCC 1 and Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1, was that Thackeray did not face the floor test on 30 June 2022 and instead submitted his resignation. The court is not in a position to quash a resignation that has been submitted voluntarily.

The court in its interim order where it had refused to stay the floor test (dated June 30, 2022) had clearly said that

the outcome of the trust vote to be conducted on 30 June 2022 “shall be subject to the final outcome” of this batch of petitions. Since the trust vote was not held, the question of it being subject to the final outcome of these petitions does not arise. (Para 194)

The court also refused to accept the petitioner’s contention that the pendency of disqualification petitions before the Speaker or the Deputy Speaker ought to have resulted in the postponement of the floor test. The court held that the pendency of disqualification petitions does not bar an MLA from participating in the proceedings of the House, which includes a floor test.

The option of initiating a no-confidence motion after the adjudication of disqualification petitions is open to the MLAs. However, this Court cannot stay the proceedings of the House until the disqualification petitions are decided. To do so would amount to interfering with the proceedings of the House. (Para 195)

Was the Governor right in inviting Shinde to form government?

The petitioners challenged the Governor’s discretion in inviting Shinde to form the government since his appointment was barred by Article 164(1B) and that Governor has exceeded the scope of his authority by recognizing one of the two rival factions as being the “real” Shiv Sena.

The court observed that this Article states that the member if disqualified cannot be appointed as a Minister. The bar begins to operate only upon the member of the legislature incurring disqualification, not if the petition for disqualification has been instituted.

The court held that the Governor’s decision to invite Shinde headed collation to form government was justified. This is because the CM post lie vacant on June 29 and on the same day, Fadnavis, wrote to the Governor claiming that 106 MLAs of the BJP extend their support to Mr. Eknath Shinde for the formation of a government, so did 8 independent candidates. The Governor accordingly asked the Shinde led government to prove majority on the floor of the house. Hence, his decision was justified.

Conclusion

1. The correctness of the decision inNabam Rebia (supra)now stands referred to a larger Bench of seven judges;
2. This Court cannot ordinarily adjudicate petitions for disqualification under the Tenth Schedule in the first instance. There are no extraordinary circumstances in the instant case that warrant the exercise of jurisdiction by this Court to adjudicate disqualification petitions. The Speaker must decide disqualification petitions within a reasonable period; .
3. An MLA has the right to participate in the proceedings of the House regardless of the pendency of any petitions for their disqualification. The validity of the proceedings of the House in the interregnum is not “subject to” the outcome of the disqualification petitions;
4. The political party and not the legislature party appoints the Whip and the Leader of the party in the House. Further, the direction to vote in a particular manner or to abstain from voting is issued by the political party and not the legislature party. The decision of the Speaker as communicated by the Deputy Secretary to the Maharashtra Legislative Assembly dated 3 July 2022 is contrary to law. The Speaker shall recognize the Whip and the Leader who are duly authorised by the Shiv Sena political party with reference to the provisions of the party constitution, after conducting an enquiry in this regard and in keeping with the principles discussed in this judgement
5. The Speaker and the ECI are empowered to concurrently adjudicate on the petitions before them under the Tenth Schedule and under Paragraph 15 of the Symbols Order respectively;
6. While adjudicating petitions under Paragraph 15 of the Symbols Order, the ECI may apply a test that is best suited to the facts and circumstances of the case before it;
7. The effect of the deletion of Paragraph 3 of the Tenth Schedule is that the defence of ‘split’ is no longer available to members facing disqualification proceedings. The Speaker would prima facie determine who the political party is for the purpose of adjudicating disqualification petitions under Paragraph 2(1) of the Tenth Schedule, where two or more factions claim to be that political party;
8. The Governor was not justified in calling upon Mr. Thackeray to prove his majority on the floor of the House because he did not have reasons based on objective material before him, to reach the conclusion that Mr. Thackeray had lost the confidence of the House. However, the status quo ante cannot be restored because Mr. Thackeray did not face the floor test and tendered his resignation; and
9. The Governor was justified in inviting Mr. Shinde to form the government.

The Supreme Court, has in its final decision on the issue, certainly clarifies a few cobwebs that surround understanding and application of the Tenth Schedule to the constitution since it was enacted in 1985 to disqualify legislators on the ground of defection. But its inability (or refusal) to provide relief to the petitioner, despite seriously faulting the governor and the speaker for their decisions –held bad in law and unconstitutional– resulting in the unseating of Udhav Thackeray’s government, leaves no lasting judicial solution to an inherently faulty illegal political process.

The complete judgement may be read here:

Related:

M’tra d’ty CM Devendra Fadnavis defends rallies against ‘love jihad’, promises law against mixed marriages

Muslim OBC quota: Don’t make political comments on sub judice matter, says SC

Aurangabad badgered with hate speeches, vandalism and destroying of public property followed in protest supporting name change of Aurangabad

Heated exchanges over minister’s ‘1 lakh love jihad cases’ remark

Electoral blow to BJP on Devendra Fadnavis Nitin Gadkari’s home turf