Maharashtra Politics: Supreme Court says concerned by Governor's actions; discontent with party leader not ground to order floor test

The Supreme Court on Wednesday said that the ex-Maharashtra Governor Bhagat Singh Koshyari's actions in calling for a floor test which led to the fall of the Uddhav Thackeray government, raises serious concerns regarding exercise of powers by the Governor [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 asked whether the Governor can call for a trust vote within the assembly because some of the MLAs of the ruling party feel that their leader is not adhering to the party ideology."We are very seriously concerned that Governor should not enter into this area where his action will precipitate a particular result. Suppose MLAs of a political party feels that our leader is not adhering to the basic ideology of the party. They can vote their leader out in a party forum but can the Governor ask them to face a floor test on the basis of this. This is a functioning government and it is in session," CJI Chandrachud remarked.The CJI underscored that while Governors have power even after government is formed, such powers cannot be used to precipitate falling of an elected government."It would be dangerous for democracy," the CJI said.Solicitor General (SG) Tushar Mehta said that a Governor cannot be a mute spectator."Governor has to see that a stable government continues. A democratically elected leader must face the floor test. Majority of the party (Shiv Sena) did not enjoy this spectacle of the alliance (with the Congress and Nationalist Congress Party)," the SG, who was representing the Governor, said.However, the CJI said that the same MLAs had stood by the alliance for three years. "But the majority members then broke bread with the others for three years! all of you were in a happy marriage and what happened suddenly? Three years you cohabit and then suddenly you say we are done... enjoy fruits of the political office !! Someone has to answer this," the CJI said."Yes absolutely. What happened suddenly," Justice Kohli demanded."That is a political issue," the SG replied, stating it cannot be debated in court. When the SG then asked if the Governor should have instead waited for 15 days instead of calling for a floor test, and not taken into account the pending disqualification proceedings, the CJI in response said,"It is being said there is corruption in government, discontent within cadre of party, and that the alliance is against the core ideology of the party. None of this can be a ground for a trust vote ... Governor is saying that but for the 39 government will fall.. but can the governor presuppose this? It is dependent on the decision of the Speaker."Justice Kohli weighed in saying, "Yes, it is a preemptory move. What is the apprehension that the Governor had?"The SG said that the issue has been dealt with in the case of Rameshwar Prasad."If there is internal dissent within party, can the Governor take a call in ordering a floor test. In Rameshwar Prasad this question was dealt with," the SG said."You cannot ask the Governor for a trust vote when there is nothing to shake confidence in the government which is running. Trust vote is not to have a new political leader. Somebody else could become the head of the party. Governor has no business there till that number in alliance is same," the CJI explained..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 todayDuring the hearing of the matter today, SG Tushar Mehta underlined that the Governor called for the floor test not to see if the Thackeray faction had lost confidence, but to prove its majority.However, CJI Chandrachud disagreed."In fact, he (Governor) says in the letter that he is confident already that Uddhav Thackeray has lost the confidence of the house."The SG refuted this and said the same was only to justify the call for a floor test, adding that acting otherwise was not constitutionally permissible.The CJI then posed the question as to what the ambit of the Governor's powers was to call for a trust vote on the basis of alleged differences within a party. "The Governor should not lend his office to effectuate a particular result. The mere fact that a floor test is called can also lead to precipitative action and toppling of the government. The threat to security (of Shinde faction MLAs) cannot be a ground to call for a trust vote. Only question is 34 members going apart. At the most, the Governor can say that he is of the view that there is some difference between Shiv Sena and INC-NCP. Can that be a ground to call for a trust vote? Then you are virtually breaking a party!"CJI Chandrachud pointed out that, in hindsight, the Thackeray faction had lost the mathematical equation. The CJI said that the alleged threats faced by MLAs of the Shinde camp were deeply concerning, but at the same time, Governors have to use their powers with 'utmost circumspection'."Maharashtra is a highly cultured State. All these things that 40 dead bodies will come etc is said in politics. But you cannot say all of this (can be ground) for the power used by Governor. We are not condoning it (threats to Shinde camp MLAs) and are deeply concerned but Governors must use their powers with utmost circumspection," the CJI stated..The CJI persisted with his line of questioning regarding the actions of the ex-Governor."So far as Congress and NCP is concerned, there was no internal shaking up there and it is a block of 97 members. 97 continues to be a solid block. Now out of 56 which Shiv Sena had, 34 went apart. So as on this date there was no suggestion that Shiv Sena can get along with the BJP. Governor cannot be oblivious to the fact that in a three-party coalition, the disruption is only in one party. None of the parties were side kicks, and had enough members."Mehta contended that the Governor's decision could not have been impacted by the fact that courts might differ from that view.The CJI then remarked,"Irrespective of the Governor feeling anything about pre or post poll alliance, this is a validly-formed government, and it was alien to the Governor to know that there were proceedings against the 34. He cannot say that a letter from these 34 will lead to shaking up the political party. If the 34 are party to the Shiv Sena, how does it lead to a change of trust in the house?"The CJI explained that dissatisfaction within the party cannot be indicative of the loss of confidence in the floor of the house.He, therefore, reiterated his question as to what had convinced the Governor that the Shiv Sena-INC-NCP alliance had become minority in the house."We will make all assumptions in favour of the Governor. The Governor has to treat all these 34 as part of the Shiv Sena, and if they continue to have 54 to 55, then why was the floor test called at all? Facts as they stand before the Governor are that the 34 were part of the Shiv Sena. If that is so why did the Governor call the floor test? One cogent reason. Tell me ... There has to be something, which alters the legal constitution of the government, which is functioning.".The SG replied saying that the Shinde faction's letter had made it clear that they did not wish to be part of a corrupt government."Members are saying they do not have confidence in the party. It is not as if the legislative party members were breaking away from the political party. Here they are withdrawing their support and that is the difference. Would the Governor not be justified in forming an opinion that indeed the government has lost majority? This is my Constitutional submission ... Only in extraordinary circumstances there can be no floor test else floor test is the norm."The SG concluded by empahsising that the Governor could not have turned a blind eye to a possible law and order situation arising out of the threats."But this cannot be grounds to unseat a government," the CJI reiterated. .Senior Advocate Kapil Sibal in his rejoinder submissions stressed that the Governor only has the power to recognise political parties and not factions. He pointed out that before the Governor and the Election Commission of India, the Shinde camp claimed to be faction but in Court they have said they are the real Shiv Sena political party.Sibal added that the Shinde faction is yet to reply to the disqualification notices, nine months in."If he is the Shiv Sena, then where is the loss of confidence? What he is doing is recognising those 34 as a faction through a trust vote. Because fact is by law he cannot [be recognised]".The hearing will continue tomorrow..[Follow our live-coverage of today's hearing]