Ouster of Uddhav Govt | How can court reinstate a CM who did not even face floor test, asks Supreme Court

The remarks came as Senior Advocate A M Singhvi, appearing for the Thackeray group, urged the bench, also comprising Justices Justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha, to restore the status quo ante.

The bench reserved its judgment in the matter.

The exchange started with CJI Chandrachud asking Singhvi, “What happens if we come to the conclusion that there was no valid exercise of power by the Governor to call a trust vote?”

“Then everything falls,” replied the senior counsel.

The CJI pointed out that Thackeray resigned without facing the floor test to which Singhvi said the resignation is a “red herring”. The senior counsel said the former CM’s “resignation and not facing trust vote is irrelevant”.

CJI Chandrachud, however, said it is like the court being told to put back a government which had acknowledged that it is in a minority.

“How can the court reinstate a Chief Minister who did not even face the floor test?,” asked Justice Shah.

“Your Lordship is not reinstating anybody… Your Lordship is and should and does and (S R) Bommai (judgment) says it more graphically, restore status quo ante,” said Singhvi.

The CJI sought to know if he was saying that Thackeray resigned only because he was called upon by the Governor to face a trust vote “Yes,” said Singhvi, adding that Thackeray put in his papers after filing the petition before the top court and made it subjudice “and after I said this is completely unknown to law, don’t allow it to go on”.

He said the Governor’s direction to hold a trust vote was illegal because he did so by recognising a faction of 34 legislators and “the CM’s participation or absence of participation will not dilute that fundamental illegality”.

“And you are frankly accepting the fact that well, you resigned because the trust vote was going to go against you,” said the CJI.

Singhvi said when an illegal act is done, “the consequence of that is known to me”.

The court also quizzed the Thackeray camp on its argument that the Governor could not have called for a trust vote on the basis of the letter written by a section of the Shiv Sena MLAs as internal party differences are not in the Governor’s domain.

Referring to a situation where a group of legislators say they have withdrawn support to a leader, the CJI asked whether the Governor can then look into it on the ground that it may affect the strength of the House.

Senior Advocate Kapil Sibal, also appearing for the Thackeray group, said it cannot be done, and if this is allowed, a majority will not be needed and even 2-3 MLAs will be able to do it. He said had been happening before the 10th Schedule came into existence.

Reminding that the basic principle of parliamentary democracy is that the government has to be accountable to and must have the faith of the House, the CJI referred to a situation where half of the legislators say they have lost faith in a government and asked what can be done then. “Going by your logic, the Governor can never call a trust vote… which means even though the government now effectively has only half of its strength in the House, it still has to continue. It’s basically reduced to a complete minority probably,” he told Sibal.

The senior counsel responded that the way out is for the members to vote against the Finance Bill in which case the government will fall.

On Wednesday, the CJI, while questioning the Governor’s role, had said that he must have asked himself what had suddenly happened that after enjoying the fruits of power for three years, a section of the MLAs decided to part ways with the Maha Vikas Aghadi government.

Responding to this, Senior Advocate N K Kaul, appearing for the Eknath Shinde faction, said is not in the Governor’s domain. By that logic, he said questions could even be asked why the Shiv Sena had left its pre-poll alliance with the BJP.