SC invalidates governor’s decision on Thackeray floor test
5 min read . Updated: 12 May 2023, 12:35 AM IST
PremiumHad Mr Thackeray refrained from resigning from the post of the chief minister, this court could have considered the grant of the remedy of reinstating the government headed by him, CJI Chandrachud said
NEW DELHI : The Supreme Court on Thursday invalidated the Maharashtra governor’s decision asking Uddhav Thackeray to face the floor test in June last year but stopped short of reinstalling him as chief minister, as he resigned instead of pursuing the Assembly battle to the end.
“This Court cannot quash a resignation that has been submitted voluntarily. Had Mr Thackeray refrained from resigning from the post of the chief minister, this court could have considered the grant of the remedy of reinstating the government headed by him," said a Constitution bench, headed by Chief Justice of India Dhananjaya Y. Chandrachud, adding the status quo ante (situation that existed before) cannot be restored after Thackeray chose not to face the floor test.
The 141-page judgment of the five-judge bench, also comprising justices M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha, divided the political upheaval in Maharashtra last year into two timeframes– events that led to Thackeray’s resignation on 29 June last year and the subsequent developments.
Thus, even as it declared that then governor Bhagat Singh Koshyari was “not justified" in asking Thackeray to face the floor test since it had no “objective material" to construe that the MVA government had lost the majority, it found nothing wrong with Koshyari inviting Shinde to form the new government on 30 June on the basis of a letter of support from the Bharatiya Janata Party MLAs.
After Thackeray resigned, the bench noted that the post of the CM had fallen vacant. “The leader of the party (Devendra Fadnavis) that had returned the highest number of candidates to the state assembly extended support on behalf of the party to Mr (Eknath) Shinde. Thus, the decision of the governor, dated 30 June, inviting Mr Shinde to form the government was justified," it underlined.
The court also junked Thackeray’s contention that Shinde was barred from becoming the CM since there was a disqualification petition pending against him under the anti-defection law when he was invited to form the government. It said that the mere institution of a disqualification petition could not render an MLA ineligible, adding Shinde would cease to be the CM only if the Speaker finally decides the plea against him.
Adversely commenting on Koshyari’s mandate to Thackeray on the floor test, the Constitution bench maintained that the exercise of discretion by him, in this case, was not in accordance with the law since the governor drew an inference that a letter from the Shinde camp complaining against Thackeray amounted to the withdrawal of support 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 the law, there is a presumption that it enjoys the confidence of the House... The governor had no objective material on the basis of which he could doubt the confidence of the incumbent government," it said. The court held that floor test could not be used as a medium to resolve internal party disputes by Governors who are not empowered under the Constitution or any law to enter the political arena and play a role in party disputes. In its ruling, the bench stressed that not the legislative party but the political party is the authority to issue whips to its members as well as appoint the leader of the legislative party and the chief whip in the House. “When the anti-defection law seeks to curb defections from a political party, it is only a logical corollary to recognize that the power to appoint a whip vests with the political party. To hold that it is the legislature party which appoints the whip would be to sever the figurative umbilical cord which connects a member of the House to the political party," said the bench, adding a constitutional court cannot be barred from inquiring into the validity of the action of the Speaker recognizing the whip.
Based on this principle, the Constitution bench declared the decision of Rahul Narwekar, the BJP leader who was elected as the Speaker on 3 July after Shinde took over as chief minister, to appoint Shinde’s supporter Bharat Gogawale as the new whip illegal. It also quashed the appointment of Shinde as the leader of the Shiv Sena legislative party in the House on the ground that Narwekar failed to conduct an enquiry into the claims of the rival factions before him and decide whether it was a decision of the real Shiv Sena.
“The Speaker must only recognize the whip appointed by the political party. The decision of the Speaker recognizing Mr Gogawale as the chief whip of the Shiv Sena is illegal because the recognition was based on the resolution of a faction of the SSLP (Shiv Sena legislature party) without undertaking an exercise to determine if it was the decision of the political party," it noted.
The court said that Narwekar will recognize the new chief whip and leader of the legislative party afresh “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." The bench, however, clarified that the recognition of the original political party by the Speaker for the purposes of appointing a whip or deciding disqualification petitions would have no bearing on the proceedings before the Election Commission regarding the symbol dispute.
Narwekar has also been entrusted by the bench with deciding the disqualification petitions pending against both Shinde and Thackeray factions. While Thackeray urged the court to decide the disqualification petitions by itself because of the alleged bias of the BJP leader, the Constitution bench ruled that the question of disqualification ought to be adjudicated by the constitutional authority concerned, namely the Speaker of the Legislative Assembly, by following the procedure prescribed.