Maharashtra Politics: Should Governor have invited Eknath Shinde to form government or BJP? Supreme Court asks

The hearing before the Supreme Court in the case relating to Maharashtra political crisis of 2022 witnessed some interesting observations by the top court on Wednesday with the bench asking whether it was correct of the Governor to invite Eknath Shinde to form the government in June 2022 instead of the leader of the single largest party in the Maharashtra assembly, BJP [Subhash Desai vs Principal Secretary,Governor of Maharashtra and ors]..A Constitution bench of Chief Justice of India (CJI) DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha asked this question in light of the fact that the earlier speaker had initiated disqualification proceedings against MLAs belonging to the Shinde camp though the same had subsequently been rendered moot after the top court by an interim order on June 27 had given green signal for the floor test leading to the resignation of then CM Uddhav Thackeray. "As a matter of propriety, should the Governor have invited Mr Shinde to form the government," the CJI asked asled Senior Advocate Neeraj Kishan Kaul who was appearing for the Shinde faction. Kaul then replied by saying there was nothing wrong in the same. "It cannot be a headless government. It [government formation] was with the party also [BJP)] with whom there was a pre-poll alliance. That CM [Uddhav Thackeray] did not have the moral authority who refused to face the floor. These 39 members [of Shinde camp] cannot be excluded," Kaul said. "Suppose the interim order was not passed on June 27 and take it at its worst that the Speaker disqualified these people. They would cease to have been members of the house. Then would the Governor have called a trust vote after noting that 39 were out of the alliance? If the 39 were ousted, then Eknath Shinde would not have been called to form the government, and maybe BJP would have been invited," the CJI remarked.The bench added that the Thackeray faction is correct in their argument that Shinde was called to form the government only because the Speaker had not yet disqualified him.Kaul, however, maintained that the Thackeray camp did not have the numbers/majority regardless. .The case has 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.The Constitution bench is hearing a batch of petitions in relation to the political crisis of 2022, which led to a change in power in the Western State.On February 17, the Election Commission (EC) had 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 Supreme Court is considering a slew of legal issues including powers of speaker to decide on disqualification of MLAs, powers of Governor and 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..During the hearing of the matter on Wednesday, Kaul began by stating that political dissent within a party does not amount to voluntarily giving up its membership, and Thackeray should have been ready to face the floor test."How can a Chief Minister ever say that he will not face a floor test? It is held that floor test is the litmus test of a true democracy. Governor has to just see that whether the government of the day enjoys majority or not."The CJI then explained, "The moment it is a rival faction it makes no difference when you say that you are the real party etc. All dates show that there is a rival faction within the meaning of the 10th schedule and a split within the meaning of the 10th schedule. A split does not postulate that a members who split leave the party, the10th schedule also operates in case of majority or minority of members and there is no difference in application of 10th schedule."Kaul responded to this saying that as per the law, the Speaker of the house has to look at who issues the whip, and as on June 21, 2022 it was not Sunil Prabhu of the Thackeray camp. "Speaker under the 10th schedule is not to determine there is a split or not as it is the Election Commission of India's domain," he said.He added that the Thackeray camp's prayer to restore status quo prior to the trust vote would amount to overriding the constitutional decision-making process and hamper electoral democracy by making constituencies unrepresented..Pertinently, he contended that when one splits and forms a political party they are saved from disqualification."This Court has held that there cannot be two recognised parties within the set up as the symbol cannot be given then. We have never claimed that we have a new original political party, we are saying that we are the same political party.".The bench has asked counsel to conclude their submissions including rejoinder arguments, by tomorrow.[Follow our live-coverage of today's hearing]