Maharashtra politics case: Supreme Court asks whether it can reinstate CM who resigned; reserves verdict

The Supreme Court on Thursday reserved its judgment in the Maharashtra politics case between the Eknath Shinde and the Uddhav Thackeray factions of the Shiv Sena party [Subhash Desai vs Principal Secretary, Governor of Maharashtra and ors]..A Constitution bench of Chief Justice of India (CJI) DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha today asked the Thackeray faction whether the Court can reinstate a Chief Minister who had resigned without facing the floor test. During the course of hearing on Thursday, the bench continued its line of questioning with regard to the powers of Governor to call a floor test.While the questions yesterday were addressed to Solicitor General Tushar Mehta, the Court today addressed its queries to the lawyers appearing for the Thackeray camp."What happens if we come to the conclusion and say that exercise of power by the Governor was not correct? What happens - does Uddhav Thackeray becomes CM? But he resigned no? It is like the Court being told that reinstate a government which has resigned." Justice Shah weighed in saying,"How can this Court reinstate a Chief Minister who did not face the floor test only?" Senior Advocate Abhishek Manu Singhvi responded saying that only the status quo ante has to be restored. To this the CJI said, "The correct thing to do was you (Uddhav Thackeray) should have faced the trust vote and then say you lost since Governor should not have called it (floor test). But look at the intellectual conundrum. Trust vote was not faced.".The case has its genesis in the split of the Shiv Sena political party into two factions, one led by Thackeray and the other by Shinde, who went on to replace Thackeray as Maharashtra's Chief Minister after the split in June 2022.The Constitution bench is hearing a batch of petitions in relation to the political crisis of 2022, which led to a change in power in the Western State.On February 17, the Election Commission (EC) had recognised the Shinde faction as the real Shiv Sena based on the majority in the Maharashtra assembly.The Shinde faction has 40 MLAs as against the Thackeray faction's 15 MLAs in the assembly.The Supreme Court is considering a slew of legal issues including powers of speaker to decide on disqualification of MLAs, powers of Governor to call for a floor test and which faction of a political party can claim to be the real political party in case of a split within the MLAs (legislative wing) of the political party..Arguments todaySenior Advocate Kapil Sibal, appearing for the Thackeray camp, asked how the Governor could have been the one recognising the majority and minority in a political party."Between the legislature and political party, the political party has primacy. The will of legislators is subject to the functioning of political party both inside and outside house, and dissent is outside not inside the house. If 50 members of BJP today support Uddhav Thackeray, will the Governor call for a floor test? The arguments advanced on the other side is against the basic principles of constitutional law."The bench then asked if a minority government can be allowed to continue, to which Sibal said that the Governor should only be concerned with the political party leader in such a case.The senior counsel ended on a poignant note, saying, "History of this Court has been the history of the celebration of values of the constitution. ADM Jabalpur has also happened; this case will determine the moment of democracy and is truly a historical one. I believe without intervention of this court democracy cannot be saved and no government will be allowed to survive. That is why I plead that this petition be allowed and the Governor's action be set aside.".Senior Advocate Neeraj Kishan Kaul, appearing for the Shinde faction, said that the Governor does not have the mandate to discern political rivalries or new alliances.Singhvi meanwhile argued that the top court would be turning parliamentary democracy on its head if it is argued that a whip is not elected by the leader of the political party. "In the context of the whip it cannot be argued that political party leader does not appoint it but the legislative party leader appoints it."Singhvi argued that the Shinde camp 'annihilated' the 10th schedule by sending a notice to the Speaker effectively disabling him."The second step is to forward resolutions to the governor parallelly. And the third step is to be sworn in as the Chief Minister with the support of a party in whose lap you were sitting in Guwahati. There is no merger at all."CJI Chandrachud then remarked that the Court was not adjudicating upon the Speaker issue but the trust vote. "Governor asks for a trust vote: now Governor has material to call for trust vote? And moving ahead calling Shinde to become the CM. Assuming he had material to call for trust vote, why did he call Shinde to become CM. Also, there was no material to call for the trust vote with the Governor."Singhvi said that Thackeray's resignation did not validate the Governor's actions."So you are saying that Article 189 recognizes de facto doctrine and it legitimises decisions of authority whose appointment is found illegal later on but that does not make the decisions illegal," the bench in summarising Singhvi's rejoinder arguments said."Dissent has to be within the parameters of 10th schedule. You cannot say I am dissenting and I am leaving the 10th schedule", the Senior Counsel said..Senior Advocate Devadatt Kamat, also for the Thackeray faction, contended that "merely saying that 'we are a legislative majority and that is why we are the real political party', is legally incorrect."Senior Advocates Harish Salve, Neeraj Kishan Kaul, Mahesh Jethmalani, and Maninder Singh briefed by a team from TAS Law consisting of advocates Chirag Shah, Utsav Trivedi, Himanshu Sachdeva, Manini Roy, Piyush Tiwari and Chaitali Jugran, appeared for the Eknath Shinde faction.Read more about Wednesday's hearing here..[Follow our live-coverage of today's hearing]