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NEW DELHI: Amidst constitutional issues arising from the split in the Shiv Sena and the Opposition parties alleging several instances of gubernatorial overreach, the Supreme Court on Wednesday observed that a governor should not enter into any area that precipitates the fall of a government. The court said that calling for a trust vote merely on the ground of differences between MLAs of a ruling party can topple an elected government.
“It will be a sad spectacle for democracy,” said a five-judge Constitution Bench headed by Chief Justice D.Y. Chandrachud said while taking forward the hearing on the events that unfolded during the June 2022 Maharashtra political crisis triggered by a revolt in the then undivided Shiv Sena by legislators loyal to Eknath Shinde.
The Sena’s Uddhav Thackery faction lawyer, Kapil Sibal, questioned the governor’s move to select a whip in the Legislative Assembly, since it fell under the purview of a political party. He questioned: “How could the governor call Eknath Shinde… On what constitutional basis can 34 people say that they are the Shiv Sena. Are they recognized by EC as the Shiv Sena?”
The court’s strong observation came after solicitor-general Tushar Mehta, appearing for the Maharashtra governor, presented the sequence of events and said there were various materials before the governor, including a letter signed by 34 Shiv Sena MLAs, a letter from Independent legislators withdrawing support to the Uddhav Thackeray government, and another of the Leader of the Opposition that prompted him to order a trust vote.
Maharashtra’s then governor B.S. Koshyari had asked Mr Thackeray to face a floor test to prove his majority. Fearing defeat, Mr Thackeray, however, resigned, paving the way for the appointment of Mr Shinde as the new chief minister.
The bench said: “Difference of opinion among MLAs within a party can be on any ground like payment of a development fund or deviation from party ethos but can that be a sufficient ground for the governor to call for a floor test? The governor cannot lend his office to effectuate a particular result. Calling for a trust vote will lead to toppling of elected governments.”
The bench, which also comprised Justices M.R. Shah, Hima Kohli, Krishna Murari and P.S. Narasimha, said a letter by the Leader of Opposition does not matter in this case as he will always keep writing that the government has lost its majority or that legislators are not happy. It said the letter from MLAs that there was a threat to their security was also not relevant in this case.
The Supreme Court observed: “The only thing is that a resolution of 34 MLAs which said that there was widespread discontent among party cadres and legislators… Is this a sufficient ground to call for a trust vote? In hindsight, we can say Uddhav Thackeray had lost the mathematical equation… But the fact is the governor cannot enter this domain which would precipitate the matter. People will start ditching the ruling party and the governor will end up toppling the ruling party. This will be a sad spectacle for democracy.”
The bench also said the governor should have questioned the (Shiv Sena) MLAs that if they were in a “happy marriage” with the Congress and NCP for three years, suddenly what happened in a day that they wanted to go out of the alliance?
The court said: “Three years you cohabited in an alliance, and one fine day, you decided for divorce. The rebel MLAs became ministers in another dispensation. The governor has to ask these questions to himself. What were you fellows doing for such a long time and now suddenly you want a divorce?”
The Eknath Shinde faction had on March 2 told the court that the petitions on the June 2022 Maharashtra political crisis fell within the realm of politics and the judiciary cannot be asked to adjudicate the issue.
A political crisis had rocked Maharashtra after an open revolt
in the Shiv Sena by the Shinde faction. At the height of the crisis on June 29 last year, the top court had refused to stay the Maharashtra governor’s direction to the 31-month-old
MVA government led by Mr Thackeray to take a floor test.
Sensing defeat, Mr Thackeray had resigned, catapulting to power a Shiv Sena-BJP ministry led by Mr Shinde. It was on August 23, 2022 that a three-judge Supreme Court bench headed by then Chief Justice N.V. Ramana had formulated several questions of law and referred to the five-judge bench petitions filed by the two Sena factions which raised several constitutional questions related to defection, merger and disqualification.
In a blow to the Thackeray bloc, the Election Commission had declared the Shinde faction as the real Shiv Sena on February 17 and allotted to it the “bow and arrow” election symbol of the party founded by Balasaheb Thackeray.
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