Maharashtra Politics: Shinde to continue as CM though Governor was wrong to conclude Uddhav Thackeray had lost majority: Supreme Court

The Supreme Court Thursday held that the decision of former Maharashtra Governor Bhagat Singh Koshyari's decision to call for a floor test based on the request of 34 MLAs of the Eknath Shinde faction was incorrect since Koshyari did not have enough objective material before him to conclude that the then Chief Minister Uddhav Thackeray had lost the confidence of the house [Subhash Desai vs Principal Secretary, Governor of Maharashtra and ors].However, the Court held that the status quo cannot be restored now since Thackeray did not face the floor test but chose to resign."Status quo ante cannot be restored as Mr. Thackeray did not face the floor test and resigned. and thus governor was correct in calling Eknath Shinde to form the government," the Court held.Hence, the Court said that the Governor's decision to call Eknath Shinde to be sworn in as Chief Minister was correct.The Court, however, underlined that the Governor could not have doubted the majority of the Thackeray government and dissatisfaction of some MLAs was not enough to call the floor test."Nothing shows members withdrew support and communication showed it disagreed with some policy decision of the Udhhav Thackeray government. Whether there would be deliberation or whether they (Shinde MLAs) will merge with another party was unclear," the Court said.Hence, the Governor was wrong to conclude that Uddhav Thakceray had lost majority in the house, the Court said.Governor must use objective criteria and not use subjective satisfaction, the Court underscored."Even if it is assumed that MLAs wanted to leave the government, it was only dissatisfaction portrayed. Floor test cannot be used as a medium to solve a intra party difference or inter party differences. There is a difference between a party not supporting government and members of some political party being unhappy," the Court said.The Governor is not entitled to enter political arena and play a role in intra party to inter party dispute and he could not have acted on the basis that some members want to leave Shiv Sena. "This cannot mean that they had withdrawn support from the floor of the house," the bench said.The Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli and P S Narasimha also referred to a larger bench the issue relating to speaker's powers as laid down in the 2016 judgment in Nabam Rebia case. The Court said that the Nabam Rebia judgment did not decide on whether a speaker against whom a disqualification notice was pending could decide on disqualification petitions against MLAs."We direct the case to be referred to a larger bench since these issues were not decided in nabam rebia - whether temporary disablement of speaker can be misused by the speakers and whether a constitutional hiatus will be ensued due to temporary disablement of speaker," the Court said.The Court framed the following question for decision by a larger bench:"Whether notice of removal of speaker stops him from deciding disqualification of members."Importantly, the Court held that the legislature party (i.e. majority of the MLAs of a particular political party in the house) is not the competent body to appoint the party whip as that will amount to serving the umbilical chord of the legislature party with the political party. "To hold that legislature party appoints the whip will be like to severe the umbilical chord... this is not the system as evisaged by the constitution. 10th schedule will be rendered otiose.. courts cannot be excluded by article 212 to examine action of speaker in recognising the whip," the Court said.Hence, the Court ruled that the appointment of Bharatshet Gogawale as the party whip in the house by the Shinde faction of Shiv Sena was illegal."The speaker on taking cognisance of the statement by Mr. Shinde did not undertake to identify who was the whip and he should have undertaken an enquiry. Decision to appoint Mr. Gogawale as chief whip was illegal since whip can be appointed only by the political party," the Court ordered..The verdict came in a case that had its genesis in the split of the Shiv Sena political party into two factions, one led by Thackeray and the other by Shinde, who went on to replace Thackeray as Maharashtra's Chief Minister after the split in June 2022.Rebel MLAs of the Shinde faction received disqualification notices from the then Deputy Speaker for acting against the party whip while voting during the Member of Legislative Council (MLC) elections in the State.The Supreme Court was called to consider whether rebel Members should be disqualified. On June 27, 2022, the Court granted interim relief to Shinde and his rebel group of MLAs by extending the time to file responses to the disqualification notices sent by the Deputy Speaker, till July 12. Subsequently, the Court on June 29 also gave the go-ahead to a floor test called for by Governor Bhagat Singh Koshyari.This led to the fall of the Thackeray government, following which Shinde took oath as Chief Minister with the backing of the BJP, the single largest party in the House.The Thackeray camp, meanwhile, filed various petitions before the top court. One of the petitions has challenged the summoning of the Assembly by the Governor of Maharashtra for conducting the floor test.Another petition challenged the order of the then newly-appointed Speaker removing Ajay Chaudhary and Sunil Prabhu from the posts of leader as well as Chief Whip of the Shiv Sena Legislature Party, respectively.The matter was eventually referred to a Constitution Bench by a Bench headed by then CJI NV Ramana in August last year.Further the top court was also called to decide on which faction of the split party had rights over the Shiv Sena's bow-and-arrow symbol.This was eventually left to the Election Commission to decide.On February 17, the Election Commission (EC) recognised the Shinde faction as the real Shiv Sena based on the majority in the Maharashtra assembly.The Shinde faction has 40 MLAs as against the Thackeray faction's 15 MLAs in the assembly.The issues on which arguments were advanced before the Supreme Court included:Validity of the decision of former Governor Bhagat Singh Koshyari to ask former Chief Minister Uddhav Thackeray to face a floor test.Validity of Governor's decision to ask rebel faction leader Eknath Shinde to take oath as Chief Minister.Power of the Speaker to act under the Tenth Schedule of the Constitution and whether he could be incapacitated from acting under anti-defection law if a notice seeking his removal from the office is pending.Which faction of a political party can claim to be the real political party in case of a split within the MLAs (legislative wing) of the political party.Whether 2016 Supreme Court judgment by a five-judge Constitution Bench in the Nabam Rebia case (relating to the 2016 political crisis in Arunachal Pradesh) which had ruled that a Speaker stands disabled to act under the Tenth Schedule to curb defection, requires to be revisited and referred to a seven-judge bench.The Eknath Shinde faction was represented by Senior Advocates Harish Salve, Mahesh Jethmalani, Neeraj Kishan Kaul, Maninder Singh with advocates Chirag Shah, Utsav Trivedi, Himanshu Sachdeva, Manini Roy, Piyush Tiwari and Chaitali Jugran, a team briefed by TAS Law.The Thackeray faction was represented by Senior Advocates Kapil Sibal, Abhishek Manu Singhvi, and Devadatt Kamat, with advocates Rohit Sharma, Nikhil Purohit, Ashok Kumar, Rajesh Inamdar, Javedur Rahman, Nizam Pasha, Anish R Shah, Harsh Pandey, Revanta Solanki, Amit Bhandari, Sunny Jain, Nishant Patil, Devyani Gupta, Tanvi Anand, Aprajita Jamwal, Dharmendra Mishra, Siddharth Kaushik, Siddharth Seem, L Nidhiram Sharma, Aman Sharma, Ashima Chauhan Singh, and Mudassir..Follow our coverage of the hearings in the case:Day 1: Read story here.Day 2: Read story here.Day 3: Read story here.Day 4: Read story here.Day 5: Read story here.Day 6: Read story here.Day 7: Read story here.Day 8: Read story here..[Read Judgment]