'Illegal Floor Test': All that SC Said on Governor's Role in Shiv Sena Case

"Took decisions carefully," said Bhagat Singh Koshyari after the Supreme Court's judgment in Shiv Sena split case.

Shiv Sena Supreme Court Verdict

(Photo: The Quint)

Video Editor: Prashant Chauhan

"The communication expressing discontent on the part of some MLAs is not sufficient for the Governor to call for a floor test. The Governor ought to apply his mind to the communication or any other material before him to assess whether the government seemed to have lost the confidence of the House," said the Supreme Court on Thursday, 11 May, while assessing the role of former Maharashtra Governor Bhagat Singh Koshyari amid the crisis that led to the fall of the Shiv Sena-led government last year.

In strongly worded observations, the apex court while announcing the decision to refer to the case to a seven-judge bench, said that "the floor test cannot be used as a medium to resolve internal party dispute or intra-party disputes" by the Governor. 

The court, however, observed that the status quo ante cannot be restored because "Mr Uddhav Thackeray did not face the floor test and tendered his resignation."

(Graphic: The Quint)

(Graphic: The Quint)

(Graphic: The Quint)

(Graphic: The Quint)

(Graphic: The Quint)

(Graphic: The Quint)

(Graphic: The Quint)

The observations by the five-judge bench led by Chief Justice of India (CJI) DY Chandrachud chronologically detailed where, how, and why Koshyari erred in calling for a floor test that catalysed the fall of the MVA government and paved way for the rebel Eknath Shinde faction to form the government with the Devendra Fadnavis-led Bharatiya Janata Party (BJP).

Here are the key highlights of the Supreme Court's observations on the Governor's role in the Maharashtra crisis last year.

'The Rebel MLAs Never Expressed Intent to Withdraw From MVA'

• Some MLAs of the Shiv Sena Legislative Party (SSLP) were dissatisfied with the functioning of the Maha Vikas Aghadi (MVA) government, they did not record their intention to withdraw support from the government.

• The Governor had no objective material on the basis of which he could doubt the confidence of the incumbent government. The resolution on which the Governor relied did not contain any indication that the MLAs wish to exit from the MVA government.

• Among the 34 MLAs who signed the resolution dated 28 June 2022 (written by Shinde faction), a few were also ministers in the government. On the basis of this resolution, the Governor concluded that the majority of the Shiv Sena MLAs have given a clear indication of their intent to exit the MVA government.

• The MLAs did not express their desire to withdraw from the MVA government in the resolution dated 21 June 2022. Even if it is assumed that the MLAs implied that they intended to exit from the government, they only constituted a faction of the SSLP and were at most indicating their dissatisfaction with the course of action adopted by their political party.

'The Dispute Was in Shiv Sena, Not the Government'

• The political imbroglio in Maharashtra arose as a result of party differences within the Shiv Sena. However, the floor test cannot be used as a medium to resolve internal party dispute or intra-party disputes.

• Dissent and disagreement within a political party must be resolved in accordance with the remedies prescribed under the party constitution or through any other methods that the party chooses to opt for.

• There's a difference between a party not supporting a government and individuals within a party expressing their discontent with the party leadership and functioning. The Governor is the titular head of the state government. It's a constitutional functionary who derives his authority from the Constitution.

• Neither the Constitution nor the laws enacted by the Parliament provide for a mechanism by which disputes among members of a political party particularly can be settled. They certainly do not empower the Governor to enter a political arena and play a role, however minute, either in inter-party disputes or intra-party disputes.

• It follows from this that the Governor cannot act upon an inference that he has drawn that a section of the Shiv Sena wish to withdraw their support to the government on the floor of the House.

'Governor Relied on Insufficient Material to Call for Floor Test'

• It is true that the letter dated 25 June 2022 sent by some MLAs of the Shiv Sena to the Governor, requesting him to issue directions to the appropriate authorities for the restoration of their security, mentions that those MLAs no longer wanted to be a part of the "corrupt MVA government." However, this cannot be taken to mean that they intend to withdraw their support on the floor of the House.

• Therefore, the Governor erred in relying upon resolution by a faction of the SSLP MLAs to conclude that Thackeray had lost the support of the majority of the House. 

• Finally, the Governor relied on the letters written by Fadnavis and seven independent MLAs calling upon him to direct Thackeray to prove the majority on the floor of the House.

• Both Fadnavis as well as the seven MLAs could have moved a motion of no-confidence. Nothing prevented him from doing so. Second, a request by some MLAs to the Governor for a direction to the chief minister to prove his majority does not, taken alone, amount to a relevant and germane reason to call for a floor test.

• The exercise of discretion by the Governor in this case was not in accordance with law.

Conclusions & Observations on the Governor's Role at Large

• The communication of the Governor dated 28 June 2022 calling for a trust vote is illegal. The Governor’s power to call for a trust vote is not unrestrained. The Governor’s decision to call for a floor test is subject to judicial review and is liable to be quashed if it is based on extraneous considerations.

• The communication of the Governor dated 30 June 2022 calling Eknath Shinde to take oath as the Chief Minister is unconstitutional and ought to be set aside for following reasons:

-The Governor calling Shinde to take oath amounts to a recognition of a split in the Shiv Sena

-The Governor could not have called Shinde to form the Government when a disqualification petition was pending against him

-The Governor could not have directed a trust vote when the legality of the disqualification petitions was pending consideration. The letter of the Governor dated 28 June 2022 recognises a split in the Shiv Sena. He does not have the authority to recognise a split.

-There is a prior challenge to the decision of the Governor to direct a trust vote. This action of the Governor cannot be immunised from judicial review by virtue of Article 189(2)

-The resignation of Uddhav Thackeray on 29 June 2022 cannot dilute the illegality of the action of the Governor in directing a trust vote

• The decision of the Governor calling Eknath Shinde to form the Government is valid and cannot be called into question because Thackeray resigned on 29 June 2022 without facing the floor test and it was the constitutional duty of the Governor to call upon another person who commanded the majority in the Legislative Assembly.

• The question of whether the Governor exercised the discretion vested in him by the Constitution in accordance with law is required to be addressed by this Court in view of the enormity of the responsibility entrusted with the gubernatorial office as well as the significance of the consequences which follow from the exercise of such discretion.

'Not My Job to Comment': Koshyari Responds to Court's Observations

Respnding to the observations by SC, Koshyari said that all decisions he took were carefully thought out.

"I have resigned as the Governor three months ago. I keep away from politics now. The case was in SC and the verdict has come. Only legal experts can comment on it, I am not one. I know Parliamentary laws. Whatever decisions I made were carefully considered beforehand," Koshyari told the media.

"If the court has said something, it is for the media and the analysts to comment on it. It is not my job to comment on it," he added.