Governor's actions illegal but can't reinstate Thackeray as CM: SC

The court also ruled that only the Shiv Sena Legislature Party led by Thackeray had the power to nominate chief Whip of the party

The Supreme Court on Thursday castigated then Maharashtra Governor Bhagat Singh Koshyari for asking Maha Vikas Aghadi government leader Uddhav Thackeray to prove his majority in Assembly but refrained from declaring the current regime led by a rebel Shiv Sena leader Eknath Shinde as illegal since his predecessor himself resigned without facing trust vote.

A five-judge Constitution bench led by Chief Justice of India D Y Chandrachud held that the Governor had no objective material to conclude that Thackeray, as leader of the combine of Congress, NCP and Shiv Sena, has lost the majority since MLAs led by Shinde, though dissatisfied with the dispensation, did not express their desire to withdraw support from the government.

The court, however, declared that the Governor was justified in inviting Shinde to form the government subsequently on June 30, 2022, as BJP with the highest 106 MLAs in the House along with eight Independent MLAs extended their support to the rebel leader.

The unanimous judgement authored by the CJI stayed, "The Governor was not justified in calling upon 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".

Read | My resignation may have been wrong, but did it on moral grounds, says Uddhav Thackeray after SC ruling

"This court cannot quash a resignation that has been submitted voluntarily. Had Thackeray refrained from resigning from the post of the Chief Minister, this court could have considered the grant of the remedy of reinstating the government headed by him," the court said.

Dealing with multiple pleas filed by both Shinde and Thackeray factions, the court ordered the Speaker to recognise the Whip and the Leader, duly authorised by the Shiv Sena political party with reference to the provisions of the party constitution, after conducting an enquiry in this regard.

It declared as illegal a decision of the Speaker to appoint Bharat Gogawale as Chief Whip of Shiv Sena on nomination by Shinde group.

The court rejected Shinde faction's contention that the chief whip is appointed by the legislature party and not the political party.

"The political party and not the legislature party appoints the Whip and the Leader of the party in the 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 court said, as a matter of principle.

Only Shiv Sena Legislature Party led by Thackeray had the power to nominate the chief whip of the party, it said.

In its judgement, the bench, also comprising Justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha, decided to refer the 2016 judgement by the Constitution bench in Nabam Rebia case, which restricted the power of Speaker to decide disqualification petition in view of pendency of motion of removal against him, to a seven-judge Constitution bench due to its adverse impact on the Tenth Schedule (anti-defection law).

With this judgement, Speaker Rahul Narwekar can decide disqualification petitions filed by both Thackeray and Shinde groups against each other.

Any decision by Speaker Narwekar, who was a BJP MLA, would certainly lead to fresh legal bouts.

With regard to the Governor's action after the rebellion by Shinde and his supporting MLAs, the bench said neither the Constitution nor the law empowered the Governor to enter into the political arena and play a role either in inter-party or intra-party disputes.

It did not approve of the Governor's decision to call for the floor test on the basis of a letter by the BJP leader Devendra Fadanvis and independent MLAs.

The bench also ruled the Supreme Court cannot ordinarily adjudicate petitions for disqualification under the Tenth Schedule in the first instance as pleaded by Thackeray group.

"There are no extraordinary circumstances in the instant case that warrant the exercise of jurisdiction by this court to adjudicate disqualification petitions. The Speaker must decide disqualification petitions within a reasonable period," the bench said, rejecting a plea by the Thackeray group.

The bench also concluded an MLA has the right to participate in the proceedings of the House regardless of the pendency of any petitions for their disqualification as the validity of the proceedings of the House in the interregnum is not “subject to” the outcome of the disqualification petitions.

Dealing with other issues, the bench held the Speaker and the Election Commission are empowered to concurrently adjudicate on the petitions before them under the Tenth Schedule and under Paragraph 15 (on control of party) of the Symbols Order respectively.

While adjudicating petitions under Paragraph 15 of the Symbols Order, the EC may apply a test that is best suited to the facts and circumstances of the case before it, the bench said.

It also said after the deletion of Paragraph 3 of the Tenth Schedule that the defence of ‘split’ in a political party 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 disqualification petitions under Paragraph 2(1) of the Tenth Schedule, where two or more factions claim to be that political party," the bench said.