Maharashtra Politics: If Governor starts intervening in a sitting house, should elected government face trust vote? Supreme Court

The Supreme Court on Tuesday said that the letter written by the Governor of Maharashtra in June 2022 asking then Chief Minister Uddhav Thackeray to undergo a floor test to prove his majority in the State assembly, had lot of extraneous and irrelevant grounds [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 said that factors cited in the Governor's letter like MLAs facing threats were not relevant considerations warranting a floor test."Just read the Governor's letter. How can he say this? Just read it. A lot of this written is constitutionally extraneous, like MLAs facing threat etc cannot be a ground for a trust vote. Only the point that seven independent do not support anymore and 34 say that they want the Shiv Sena to walk out of Maha Vikas Aghadi [can be accepted]," the Court said.The Court made the remark in response to the submission by Eknath Shinde factions counsel Senior Advocate Neeraj Kishan Kaul who said,"The Governor took an informed decision and if you feel you cannot face a floor test you should back out. Which government can continue without the floor test? The Governor notes that there is violence, attacks. 34 of 55 do not support the ministry. 7 independents have withdrawn."Pertinently, the Court also asked whether a government should face a trust vote because of interventions by the Governor in a sitting house in which the ruling party is enjoying majority."When Governor starts intervening in a sitting house, then why should a government, which has been formed and in respect of which there was no disquiet a month ago, suddenly to face a trust vote," the bench asked..Senior Advocate Neeraj Kishan Kaul appearing for the Eknath Shinde faction argued that there could not be a cut-off date for party members to lose confidence in the party, and the Governor was right in exercising his discretion in calling the trust vote even.The CJI, however, said that what was noteworthy was that the dissident MLAs did not raise any claim that they are the real Shiv Sena.Since the head of the party (Uddhav Thackeray) also did not tell the Governor that it is withdrawing support to the Maha Vikas Aghadi coalition (also comprising Congress and Nationalist Congress Party), the CJI asked whether the Governor could have called for a trust vote."It is not open to one segment of Shiv Sena or Congress to say that we are part of the alliance. None of the parties of MVA can say that you do not want to go along with the alliance. Go to your political party leader, none of them had majority ... Your letter to the Governor has one thing absent.. that we are the Shiv Sena. The Governor was not alive to this argument at all that you are the Shiv Sena at all. None of the parties in the MVA had the majority so as to just walk out of the alliance," the CJI said.Kaul then submitted that the Governor had taken note of the 'overwhelming discontent' among the cadre of the Shiv Sena party.He also sought time till tomorrow to show the material on the basis of which it was shown that the Shinde faction enjoyed the confidence of the majority in the party..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 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 Dr Abhishek Manu Singhvi for the Uddhav Thackeray submitted that the present case was unique in that the Governor acted the way he did even though disqualification petitions against MLAs who had allegedly defected from Shiv Sena, were pending."It is a double sub-judice both in the Supreme Court and before the Speaker. The Governor recognises a split. If the court cannot do it, the Governor will do it. The governor directly recognises the split. Th Governor is in error as a constitutional authority. I know this Court cannot issue directions to the Governor and contempt does not lie but in ordinary case contempt notice should have been issued," he said.The senior counsel reiterated that the issue had serious consequences for the country's constitutional polity, and so the top court should restore the status quo that was on the date before the floor test, that is June 27, 2022. He pointed out that the Thackeray faction was only protected by an interim interim order of the apex court. He said the Governor has to no power to call for a trust vote after a government is formed and when there are disqualification petitions pending against MLAs..Senior Advocate Devadatt Kamat, also for the Thackeray faction, then submitted that the Govrenor's action amounted to not just procedural irregularity but substantive illegality and unconstitutionality."Political party is not something which is anomalous. It is clear and directions of political party under 10th schedule means directions from the leadership of the political party. The leadership structure has to be communicated to the Governor." Senior Advocate Kaul, for the Shinde faction rebutted the submissions, stating that the Thackeray faction wants the top court to bypass all constitutional authorities and rule the Shinde camp disqualified. "These submissions suffer from a basic problem. Supreme Court has held it will not act as court of first instance when there are coordinate Constitutional authorities. There were emphatic assertions made when question was posted that what should governor do when govt is formed. It was submitted no floor test but only a vote of no confidence. With respect these submissions are in teeth of SR Bommai judgment by 9 judges of this Court," Kaul said.When the only mode available to determine majority of the government was the floor test, aspersions cannot be cast on the Governor, he added. "Political party is organically linked with the legislative party. Discontent arose because elections were fought alongside one party (BJP) but government was formed with another (Congress and NCP) which led to discontent.".[Maharashtra] Recognising split in legislative party sans merger will lead to toppling of governments: Thackeray faction to Supreme Court.The CJI then remarked that the issue concerned the 'antecedent circumstances' of alleged defections that had necessitated the floor test. "The need of floor test arises because a group of legislators may be disqualified for splitting from the legislative party. When the legitimacy of the split is in question, then holding the floor test before deciding the disqualification petitions, would it not lead to putting a premium on the circumstances which led to the alleged defection?", the Chief Justice of India asked. He noted that the problem arose as the trust vote was 'inextricably linked' to the alleged defections.The CJI then asked whether the Court can accept the argument that split in party would not be a ground for disqualification."If we accept this extreme proposition, radical situations will emerge. 10th schedule is there to prevent Constitutional sin of defection. So that is why disqualification proceedings (are there) but then we also say that till disqualification, let floor test be held. So in a way you are legitimising defection though such an argument! Whether you are Shiv Sena or not will not be decided on the floor of the house." Kaul then responded saying that the Election Commission did decide, before adding that there was no split. "Then you go to party members and say that we are the Shiv Sena. You cannot do that on floor of the house," Justice Kohli remarked.Kaul then reiterated that that the matter was one of internal dissent and the Shinde faction was the real Shiv Sena..[Follow our live-coverage of today's hearing]