Upshot of SC Maharashtra ruling: Shinde will stay CM, but Governor’s action wrong

However, the court held that then Governor Bhagat Singh Koshyari was wrong in calling the floor test without any objective material.

Why did the SC say this?

“The validity of proceedings of the house is not subject to disqualification proceedings,” the Bench said. “The status quo ante cannot be restored because Thackeray did not face floor test and resigned, although the Governor’s decision for the floor test was wrong, and the Speaker was wrong in appointing the whip of the Shinde group.

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“Petitioners (Thackeray group) argued for restoring the status quo ante. However, Thackeray did not face the floor test. Had Thackeray refrained from resigning from the post of Chief Minister, the court could have restored it. The then Governor (Bhagat Singh Koshyari) was justified in calling Shinde to administer him an oath as CM with the support of the largest party BJP,” the Bench held.

It also held that the decision of the Speaker to hold that Bharat Gogawale (Shinde group) was the whip of Shiv Sena was “illegal”. The Speaker should have conducted an independent inquiry to identify two whips issued by (two factions) political party, the Bench said.

And what did the court say on the plea to refer the 2016 Nabam Rebia ruling to a larger Bench?

The five-judge Bench referred to a larger Bench certain issues related to its 2016 judgment in the Nabam Rebia case. The Bench clarified that the order dated June 27, 2022 did not rely on the Nabam Rebia decision, and it only extended the time to give a reply to the Deputy Speaker’s notices.

In ‘Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Legislative Assembly’ (2016), the Supreme Court had ruled that it would be “constitutionally impermissible for a Speaker of the House to adjudicate upon disqualification petitions under the anti-defection law as per Tenth Schedule while a motion of resolution for his/her own removal from Office of Speaker is pending”.

What did the court say on the role of the Governor?

On the role of the then Governor of Maharashtra Bhagat Singh Koshyari, the Bench said the Governor had no objective material in calling for floor test.

“If the Speaker and the government circumvents the no-confidence motion, the Governor will be justified in calling for a floor test without the aid and advice of the council of ministers…The Assembly was not in session when the Leader of Opposition Devendra Fadnavis wrote to the Government. The opposition parties did not issue any no-confidence motion. The Governor had no objective material to doubt the confidence of the Government. The floor test cannot be used as a medium to resolve inter-party disputes or intra party disputes. Even if it is assumed that the MLAs wanted to exit the government, they constituted only a faction,” the court said.

It went on to add, “Nothing in any of the communications relied on by the Governor indicated that the dissatisfied MLAs wanted to withdraw support to the Government. The Governor erred in relying on the resolution of a faction of MLAs of Shiv Sena to conclude that Uddhav Thackeray had lost support of the majority of MLAs.”

The court held that the security concerns expressed by MLAs (from the Shinde faction) have no bearing on the support of the government. “This was an extraneous consideration on which the Governor placed reliance on. Governor ought not to have relied on the said letter…It did not indicate that Mr.Thackeray lost support. The governor did not have any objective material to indicate the government had lost confidence in the house,” it said.

What is the background of this case?

The Supreme Court has been hearing from June 2022 onward a batch of petitions filed by leaders from the Thackeray and Shinde factions.

The Shinde camp challenged the June 21 decision of Assembly Deputy Speaker Narhari Zirwal (of the NCP) recognising Ajay Choudhari as leader of the Shiv Sena Legislature Party (SSLP) in place of Shinde — who had rebelled against Thackeray and gone to Surat with some MLAs — calling it “illegal, unconstitutional”, and taken with “bias”.

The plea also challenged the disqualification notices that Zirwal had served on Shinde and 15 MLAs supporting him on June 25 for not attending a party meeting convened by then Chief Minister Thackeray. The rebels had been given 48 hours (until June 27) to respond.

Relying on Nabam Rebia, the Shinde camp argued that Zirwal could not act on the disqualification petition against the 16 MLAs while a notice for a resolution seeking his own removal was pending. In response, Zirwal told the court that the no-confidence motion against him was rejected because the genuineness or veracity of the notice could not be ascertained.

On June 27, a Bench of Justices Surya Kant and J B Pardiwala extended until July 12 the deadline given by Zirwal to the 16 Shinde camp MLAs to reply to the disqualification notices. However, the court refused to restrain the holding of the floor test in the Assembly until then.

Then Governor Bhagat Singh Koshyari asked Thackeray to face a floor test on June 30 to prove his majority. Staring at defeat, Thackeray resigned late in the evening of June 29, and Shinde was sworn in as the new Chief Minister the following morning.

And what happened before the Constitution Bench?

On August 23, a three-judge SC bench led by then CJI N V Ramana referred the questions arising out of petitions filed by rival camps to a five-judge Constitution Bench, saying the Nabam Rebia verdict “requires gap filling to uphold constitutional morality”.

Former CJI Ramana framed 10 issues for the consideration of the Constitution Bench, including whether the notice for removal of the Speaker restricted him/ her from continuing with disqualification proceedings under the Tenth Schedule of the Constitution, as held in Nebam Rabia.

The Constitution Bench was also asked to consider a situation in which the Speaker disqualifies members from the date of the complaint — and decide on the status of the proceedings that took place during the pendency of the disqualification petition.

The Thackeray camp argued before the Constitution Bench led by CJI Chandrachud that by invoking Nabam Rebia, MLAs who want to defect can pre-empt and stall disqualification proceedings against them by seeking the Speaker’s removal through a notice. The Thackeray camp pleaded that Nabam Rebia should be revisited by a seven-judge Bench of the court.

The Shinde faction argued that the matter had become academic and there was no reason for a reference to a larger Bench. The Thackeray side contended that the matter had ramifications for the country’s democratic future — and that the court must not distinguish the Nabam Rebia decision from the Shiv Sena matter.

Senior advocates Kapil Sibal, Abhishek Manu Singhvi and Devadatt Kamat appeared for the Thackeray group, while a battery of senior counsel including Harish Salve, Neeraj Kishan Kaul, Mahesh Jethmalani, Maninder Singh, Siddharth Bhatnagar and Malvika Trivedi represented the Shinde-led Sena. Solicitor General Tushar Mehta argued for the Maharashtra Governor.