Maharashtra politics case: How can Governor enter into political arena and argue on formation of government? Supreme Court asks

The Supreme Court on Wednesday took exception to Maharashtra Governor commenting on formation of government in the State during the course of his arguments before the top court in the case between Uddhav Thackeray and Eknath Shinde factions of Shiv Sena [Subhash Desai v. Principal Secretary, Governor of Maharashtra & Ors]..A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli, and PS Narasimha asked how a Governor can comment on the political alliances and government formation in the State.The remark came after Solicitor General (SG) Tushar Mehta, appearing for the Maharashtra Governor, began by saying that the current political era is one of alliances, and that the Thackeray camp had gone back on a pre-poll alliance between Shiv Sena and BJP in 2019."You do not go to voter as only individual, but with shared party ideology. Voter votes for ideology and the political philosophy that parties project. We hear the word 'horse trading'. Here, leader of stable (Uddhav Thackeray) formed government with those against the alliance (Congress and NCP)."The bench, however, took exception to such argument being advanced by the Governor."How can Governor be heard to say all this? On the formation of government, how can the Governor say this? We are only saying Governor should not enter political (arena)..." the CJI said.The Court was hearing the case concerning the two warring factions of the Shiv Sena, led by Eknath Shinde and Uddhav Thackeray.The Bench is currently hearing whether rebel Members of Legislative Assembly (MLAs) from the Shiv Sena should be disqualified, and also on which faction of the split party has rights over the bow-and-arrow symbol..The Court during the hearing today also asked whether its Constitution Bench decision in Nabam Rebia, concerning the power of the Deputy Speaker to initiate disqualification proceedings, can be tweaked by another five-judge bench.The Court raised this question while discussing the constraints on Assembly Speakers when motions for their removal are under consideration..Even as counsel on both sides objected to reconsidering the Nabam Rebia judgment, CJI Chandrachud said,"It is a tough issue to answer because the consequences of both positions are serious. If you take the Nabam Rebia position, as we have seen in Maharashtra, it allows the free flow of human capital from one party to other. The second end is that even if the leader of the political party has lost his flock, he can hold it down and thus adopting it would be ensuring a political status quo. Whichever way you accept, has very serious consequences and not desirable.".CJI Chandrachud pointed out to Senior Advocate Neeraj Kishan Kaul, appearing for the Eknath Shine camp, that no minimum threshold exists as to how many MLAs are needed to send a notice seeking the Speaker's disqualification. "This can cause grave danger which will stop the Speaker from working," the CJI said. Kaul then said that the same will not be indefinite as the resolution will go to a vote, to which the CJI replied that the constraints on Speakers as under Article 181 in such situations must be logical.At this point, Kaul argued,"We cannot say that Speaker working towards unconstitutional end will only work when the motion is taken up and not before that."The CJI responded,"Do you not you think it (judgment in Nabam Rebia) can be tweaked? Can we do it in a composition of five judges?"Justices Shah and Narasimha expressed their agreement with the CJI. .Senior Advocate Harish Salve, appearing for the Shinde camp, opposed the reference of the decision in Rebia to a larger bench, as sought by Sibal. "This was an anti-defection law and not anti-dissent law. Unless the Court comes to a startling conclusion that the notice pending before the Speaker is transferred to the Supreme Court under Article 142 or members get disqualified as soon a plea for disqualification is filed...This is a wrestling which going on for leader of opposing party." He added that the matter of reliance on that decision was now an academic issue, as the Shinde camp had since proven its majority to the Governor even without a Speaker. The CJI then remarked,"Actually it all boils down to this: that they (Uddhav Thackeray faction) did not face the trust vote and that there were 16 disqualification petitions and events were overtaken later on...ultimately two judicial orders seal the fate. One is the June 27 order where deadline for reply to disqualification plea was extended to July 12, and then when they came back to challenge trust vote, this Court declined. The Uddhav Thackeray faction knew that without a decision on the disqualification petition, the fate of the trust vote was sealed."Salve reiterated that the Tenth Schedule, which provides for an anti-defection law, cannot be made a weapon for a leader who has lost faith."There are layers of political morality in all of this and it is best Your Lordships stay away from all of this, these are complex questions," he said.The CJI replied, "It is not academic.. if there was no communication from the Governor, then Uddhay Thackeray would not have resigned...Nabam Rebia becomes correct or wrong based on which side you are on; some says it is and some says it is not." Senior Advocate Kapil Sibal weighed in, saying,"Politics of defection cannot be decided in the House and you have to go back to the political party."Kaul added that when MLAs are disqualified unfairly by the Speaker, it shakes the bedrock of democracy as constituents go unrepresented. .The SG then reiterated Salve's submissions, stating,"The Tenth Schedule is to stifle unprincipled defections, not principled dissent. If a Speaker is allowed to disqualify members on the basis of right to conscience, then such rights have to be revisited."Sibal joined in voicing the Bench's apprehension, and added,"How can you argue all this? This has to be from the Governor and recorded so and it cannot be said that he is arguing in personal capacity...Then should we argue that ruling party has fundamental right to buy people?".Today was the second consecutive day of arguments in the matter.Sibal, appearing for the Thackeray camp, had yesterday argued that while the Court takes years to decide on election cases concerning some states, it sits on a day-to-day basis to discuss such matters for other states..In the wake of the political crisis in Maharashtra last year, rebel MLAs of the Shinde faction had received disqualification notices from the then Deputy Speaker for acting against the party whip while voting during the Member of Legislative Council (MLC) elections in the State.The rebel MLAs then approached the top court against the disqualification notices. The Supreme Court had on June 27, 2022 granted interim relief to Shinde and his rebel group of MLAs by extending the time to file responses to the disqualification notices sent by the Deputy Speaker, till July 12.Subsequently, the Court on June 29 also gave the go-ahead to a floor test called for by Governor Bhagat Singh Koshyari.This led to the fall of the Thackeray government, following which Shinde took oath as Chief Minister with the backing of the BJP, which is the single largest party in the House.The Thackeray camp, meanwhile, filed various petitions before the top court. One of the petitions has challenged the summoning of the Assembly by the Governor of Maharashtra for conducting the floor test.Another petition challenged the order of the then newly-appointed Speaker removing Ajay Chaudhary and Sunil Prabhu from the posts of leader as well as Chief Whip of the Shiv Sena Legislature Party, respectively.The issues involved in the matter were referred to a Constitution Bench by a Bench headed by then CJI NV Ramana in August last year..The Bench is likely to conclude hearing arguments tomorrow, and reserve its verdict in the matter. [Follow our live-coverage of today's hearing]