Maharashtra Political Crisis: SC Constitution Bench holds Governor justified in inviting Eknath Shinde to form Government; 7-judges bench to reconsider Nabam Rebia judgment

Supreme Court: The five Judge Constitution Bench of Dr. D.Y. Chandrachud (C.J), M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha JJ., while hearing the matter pertaining to the split within the Shiv Sena party between Eknath Shinde and Uddhav Thackeray factions, which led to a gigantic political crisis in Maharashtra leading to a change in the State government in the year 2022, held that it cannot quash the resignation letter of Thackeray and the Governor was justified in inviting Eknath Shinde to form the Government.

Background

The batch of petitions were filed from both sides of the faction over multiple issues.

1. The first being filed by Eknath Shine challenging the notices issued by the then Deputy Speaker against the rebels under the 10th schedule of the Constitution of India over the alleged act of defection.

2. The Thackeray faction filed petitions over the decision of the Maharashtra Governor to call for a trust vote, the alleged illegal swearing-in of Eknath Shinde as the Chief Minister of the State, the proposal of election of new Speaker etc.

In the earlier order, the Constitution Bench had said that the “issue whether a reference of the decision in Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1 (‘Nabam Rebia') to a larger bench is warranted would be determined together with the merits of the case”. In Nabam Rebia, it was ruled that the Speaker could not initiate disqualification proceedings when a resolution seeking his removal is pending.

The Constitution Bench had started to hear the matter from 14-02-2023 and reserved its judgment on 16-03-2023.

Court's Decision

The Constitution Bench referred Nabam Rebia judgment to larger Bench for reconsideration of the accuracy of the judgment, wherein it was held that that the Speaker could not initiate disqualification proceedings when a resolution seeking his removal is pending was also reserved by the Court.

Further, the Bench said that to hold that it is the Legislative Party who appoints the whip will mean severance of the umbilical cord with the Political Party.

The Court said that to avert a no confidence motion, the incumbent Government may not advise the Governor to convene a session of the assembly and the Speaker may adjourn the sitting of the house to prevent voting for granting leave to move a motion of no confidence. If the speaker and Government attempt to circumvent a no confidence motion, the Governor would be justified in exercising the power under Article 174 of the Constitution, without the aid and advice of Council of Ministers.

The Court said that the Governor may not enquire into or express an opinion on the validity of the proceedings of the legislature that is exclusively within the domain of the legislature itself. The discretionary power of the Governor under Article 163 of the Constitution is limited to situations where the Constitution provision expressly provides it or where the Constitution cannot be construed otherwise to grant such discretion and hence, the Government ought not to have relied on the letter dated 21-June-2022. In any event the contents of the letter did not indicate anything to suggest that the then Chief Minister, Thackeray had lost the confidence of the House.

The Court said that it cannot quash a resignation letter submitted voluntarily, had Thackeray refrained from resigning the post of the Chief Minister, the Court could have considered the grant of remedy of reinstating the Government headed by him.

The Bench conclusively said that:

1. The correctness of the decision in Nabam Rebia is referred to a larger Bench of 7 Judges.

2. This Court cannot ordinarily adjudicate petitions for disqualification under the 10th Schedule in the first instance. There are no extraordinary circumstances in the instant case that warrant the exercise of jurisdiction by the Court to adjudicate the disqualification petitions. The Speaker must decide the disqualification petitions within a reasonable period.

3. An MLA has the right to participate in the proceedings of the House regardless of the pendency of any petitions for their disqualifications. The validity of the proceedings of the House in the interregnum is not subject to the outcome of the disqualification petitions.

4. The Political Party and not the Legislature Party appoints the whip and the leader of the party in House. Further, the direction to vote in a particular manner or to abstain from voting is issued by the Political Party and not the legislature party. The decision of the Speaker as communicated by the Deputy Secretary to the Maharashtra Legislative Assembly dated 03-jul-2022 is contrary to law. The Speaker shall recognize the whip and the leader who are duly authorized by the Shiv Sena Political Party with reference to the provisions of the Party Constitution after conducting an inquiry.

5. The Speaker and the ECI are empowered to concurrently adjudicate on the petitions before them under the 10th schedule and paragraph 15 of the Symbols order respectively.

6. While adjudicating the petitions under paragraph15 of the symbols order, the ECI may apply a test that is most suitable to the facts and circumstances of the case before it.

7. The effect of the deletion of paragraph 3 of the 10th Schedule is that the defense of a split is no longer available to members facing disqualification proceedings, the Speaker would prima facie determine who the Political Party is for the purpose of adjudicating disqualifications petitions and paragraph 2(1) of the 10th Schedule, where 2 or more factions claim to be that political party.

8. The Governor was not justified in calling upon Mr. Thackeray to prove his majority on the floor of the House because he did not have reasons based on objective material before him to reach the conclusion that Thackeray had lost the confidence of the House. However, the status quo ante cannot be restored because Thackeray did not face the floor test and tendered his resignation. Therefore, the Governor was justified in inviting Eknath Shinde to form the Government at the behest of the BJP which was the largest political party in the House.

Thus, the batch of writ petitions was disposed of in terms of the conclusions.

[Subhash Desai v. Governor of Maharashtra, 2023 SCC OnLine SC 607, Decided on 11-05-2023]