Ouster of Uddhav govt: Supreme Court says threats, dissent can’t be ground for Governor to call a floor test

Pointing out that members of a legislature party losing confidence in a leader is an internal party affair, the CJI said the Governor has no role in it.

“You can never allow the Governor to ask for a trust vote when there is absolutely nothing to shake the majority on the floor of the House… The trust vote is not for determining who is to be your leader in the House… Governor’s trust vote is where the majority in the House is shaken. Where was there anything to indicate that?”

The Solicitor General told the Bench, also comprising Justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha, that the MLAs had written to the Governor communicating the threat to their lives and that they did not want to continue with the “corrupt government”.

“The apprehension of MLAs is also fortified by a letter from the Leader of the Opposition who has also provided links to videos where Mr so-and-so has openly stated that dead bodies would come… This is a threat on a public platform. Let us not lessen the gravity,” Mehta said, adding that the court should not condone it.

The CJI responded that “it is a law and order situation”.

“No,” said Mehta, adding “it can be law and order but if it is created to bring pressure on the legislative process, then it’s not just a law and order situation. It is one of the major considerations for the Governor that yes, he (Uddhav) seems to have lost majority, and now open threats are being administered that you come in our fold or you will be sent to post-mortem. It is a threat to death. It cannot be taken lightly.”

Mehta said that the Governor had before him the resolution dated June 21, 2022 by 34 MLAs of the Shiv Sena Legislature Party (SSLP) stating that Eknath Shinde was reaffirmed as the leader of the SSLP, the June 25 letter by 38 MLAs about the withdrawal of their security and threat to their lives, and letters dated June 28 from the Leader of the Opposition and 7 independent MLAs stating that Thackeray had lost majority and requesting a trust vote.

The CJI asked whether the Governor can call for a trust vote merely because there is a policy difference within a party on whatever aspect.

“The Governor must equally be conscious of the fact that his calling for a trust vote may itself be a circumstance which may lead to toppling of a government…The Governor should not enter into any area which precipitates the fall of a government,” he said, adding “the Leader of the Opposition will always write to the Governor. Threat to security is not a ground for calling for a trust vote”.

Mehta replied that the Governor’s primary responsibility is that a stable government continues and a democratically elected leader should continue to enjoy the confidence of the House throughout the tenure. “Otherwise, there would be no accountability of the leader,” he said.

The CJI, however, said that the MLAs have their remedy. “They can vote the leader out by saying that the leader is not holding the ethos of the party. But can the Governor say… It’s a government which is formed. It’s a functional government.”

The Bench said it is not condoning the threats. “But we also have to see what about the Governors? They must exercise these powers with the greatest circumspection,” the CJI said.

He said the MLAs could have waited for the monsoon session which was going to happen soon and if the government did not get the votes for revenue measures, they would have been out.

On the threats, the CJI said the Governor had written to the Additional Chief Secretary to provide security. “He did his duty by doing that.”

Mehta said it’s “too simplistic a way to look at it. Please look at it holistically”.

“The Governor is supposed to be not a mute spectator because the threats are not a law and order situation. The threats are sent with a view to create an artificial majority. Not just threats, real attacks are taking place. Would I expect the Governor to sit as a mute spectator and say you wait till the monsoon session? This court has held that the Governor is duty-bound to hold a floor test in such cases. It might aggravate the situation but that’s how democracy works,” he said.

The CJI, however, said, “What happens is people start ditching the government. Then, the Governors are willing allies saying hold trust votes. So you give sanctity to this. This is a very sad spectacle in our democracy. This is irrespective of the morality of Shiv Sena having joined the INC… They broke bread for three years. They broke bread with the INC and NCP for three years. What happened overnight after three years of happy marriage?”

“The Governor has to ask himself this question. What were you fellas doing for three years? If it was one month after the election… and they suddenly bypassed the BJP and joined INC, that’s different. Three years you cohabit and suddenly one fine day, a group of 34 says there is discontent. Enjoying the spoils of office and suddenly one day you just…,” he said.

Mehta pointed to the Supreme Court ruling in the Rameshwar Prasad case to answer whether the Governor can intervene in case of internal dissatisfaction within a party.

The CJI said the Governor had not taken two important things into account. “One, insofar as the Congress and the NCP are concerned, there is no internal dissent… Congress had 44 members and NCP had 53 members. This is a block of 97. The 97 still continue to be a solid block. What is disturbed is that out of 56, the Shiv Sena had… Second thing the Governor has to bear in mind is that as of this date there is not even a suggestion that Shiv Sena is going to team up with the BJP to form the government. He can’t be oblivious to the fact that in a three-party coalition, the dissent has taken place in one party of the three. The other two are steadfast in the coalition. They are not by any means sidekicks. They are almost at par.”

Justice Narasimha pointed out that in Rameshwar Prasad, the government was not formed but in the present one, the government has been subsisting for more than three-and-a-half years.

Mehta responded that the power of the Governor had to be the same at the time of initial formation of the government and subsequent formation.

But the CJI pointed out that the court had in that case said that “the Governor cannot refuse the formation of a new government and override the majority because of his subjective assessment… This is a government which is legitimately formed. That’s one. Second, it says the Governor cannot assume to himself judicial power and come to the conclusion that it’s a violation of the Tenth Schedule. So it was alien to the Governor’s mind that these 34 MLAs would have to be excluded from consideration because they have incurred a disqualification under the Tenth Schedule. The Governor has to treat them as part of Shiv Sena irrespective of what their internal issue is. He cannot say that the letter given by these 34 is a ground for shaking the faith of the government. He has to take these 34 as forming a part of the Shiv Sena Legislature Party. And if they are a part of the Shiv Sena Legislature Party, where is the ground to say that there is a change in the position of trust in the House?”.

The CJI said the dissatisfaction within a party is different from loss of majority of government. “One is not necessarily indicative of another. In this situation, what was it that would have led the Governor to come to the conclusion that the government had lost the majority? What was the factual basis for him to conclude… What is the reason for calling a trust vote?… Tell us one reason why he has to call for a floor test.”

He pointed out that the court’s rulings in Bommai, Rameshwar Prasad etc say “circumstances which would warrant the invocation of Tenth Schedule are alien to the mind of the Governor when he calls for a floor test. Therefore, the possibility that these 34 MLAs would incur a disqualification is irrelevant. If that is so, the Governor must proceed on the basis of position as it obtains. Unless there is some subsequent event which alters the legal constitution of the government, the Governor must continue to have before him and analyse the situation as it was before the government was formed… He can’t go to the Tenth Schedule. That’s the Speaker’s jurisdiction.”