Governor asking Thackeray for floor test not justified, but can’t restore govt: SC

In a unanimous ruling on petitions filed by Thackeray and Shinde factions relating to the political crisis that led to the fall of the three-party Maha Vikas Aghadi government in Maharashtra, the five-judge Constitution bench led by Chief Justice of India DY Chandrachud said, “The Governor was not justified… 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.”

The Supreme Court, however, pointed out that “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,” it said.

The bench which also comprised Justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha, rejected the Shinde camp’s contention that the political party and legislature party are “inextricably intertwined”, and in a sense emphasised the primacy of the political party. The Shinde camp had advanced this argument to justify the election of Bharat Gogawale as the new chief whip and Shinde as the leader of the Shiv Sena Legislature Party (SSLP) on June 21 last year.

“The Speaker must only recognise the whip appointed by the political party,” the Supreme Court said. Accordingly, it termed the decision of the Speaker (Rahul Narwekar) recognising Gogawale as the Chief Whip of the SSLP “illegal because the recognition was based on the resolution of a faction of the SSLP without undertaking an exercise to determine if it was the decision of the political party”. “The Speaker must recognise the Whip and the Leader who are duly authorised by the 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,” it said.

Writing for the bench, the CJI said, “The plain meaning of the provisions of the Tenth Schedule, 1986 Rules, and Maharashtra Legislature Members (Removal of Disqualification) Act of 1956 indicate that the Whip and the Leader must be appointed by the political party.” “The Tenth Schedule was introduced to thwart the growing tendency of legislators to shift allegiance to another political party after being elected on the ticket of a certain political party… When the anti-defection law seeks to curb defections from a political party, it is only a logical corollary to recognise that the power to appoint a Whip vests with the political party,” it said.

“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. It would mean that legislators could rely on the political party for the purpose of setting them up for election, that their campaign would be based on the strengths (and weaknesses) of the political party and its promises and policies, that they could appeal to the voters on the basis of their affiliation with the party, but that they can later disconnect themselves entirely from that very party and be able to function as a group of MLAs which no longer owes even a hint of allegiance to the political party. This is not the system of governance that is envisaged by the Constitution. In fact, the Tenth Schedule guards against precisely this outcome. That a Whip be appointed by the political party is crucial for the sustenance of the Tenth Schedule….,” the Supreme Court said.

It, however, said the Election Commission and the Speaker were empowered to concurrently adjudicate on the petitions before them under the Tenth Schedule and under Paragraph 15 of the Symbols Order – to decide who is the real Shiv Sena, respectively. “This is because the decision of the Speaker and the decision of the ECI are each based on different considerations and are taken for different purposes. The decision of the ECI has prospective effect(s). A declaration that one of the rival groups is that political party takes effect prospectively from the date of the decision,” the SC said.

“In the event that members of the faction which has been awarded the symbol are disqualified from the House by the Speaker, the members of the group which continues to be in the House will have to follow the procedure prescribed in the Symbols Order and in any other relevant law(s) for the allotment of a fresh symbol to their group,” it said.

Thackeray had argued against the court remanding the disqualification proceedings against the rebel Sena MLAs to the Speaker. To this, it said, “The court should normally refrain from deciding disqualification petitions at the first instance, having due regard to constitutional intendment. The question of disqualification ought to be adjudicated by the constitutional authority concerned, namely the Speaker of the Legislative… 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”.

In its judgement, the Supreme Court said, “Ultimately, the decision of the Speaker on the question of disqualification is subject to judicial review.” It asked the Speaker to decide the disqualification petitions “within a reasonable period”. The court also rejected the contention of the Thackeray camp that the validity of the proceedings in the House during the pendency of the disqualification petitions would depend on the outcome of the disqualification petitions.

On the role of the Governor, the SC said 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. Doing so without the aid of the Council of Ministers “has ramifications on parliamentary democracy”, it said, adding that “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”.

On the Governor’s role, it said, “…He cannot exercise a power that is not conferred on him by the Constitution or a law made under it. Neither the Constitution nor the laws enacted by Parliament provide for a mechanism by which disputes amongst members of a particular political party can be settled. They certainly do not empower the Governor to enter the political arena and play a role (however minute) either in inter-party disputes or in intra-party disputes.”