Maharashtra Politics: Supreme Court says Governor not entitled to enter political arena or play role in intra/inter-party rifts

The Supreme Court on Thursday observed that Governors have no power to enter the political arena or take part in any intra-party or inter-party disputes [Subhash Desai vs Principal Secretary, Governor of Maharashtra & Ors]..The Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli, and PS Narasimha made the observation in its judgment on the Maharashtra political crisis case that arose out of the rift between the Eknath Shinde and Uddhav Thackeray factions. The Court was specifically referring to the decision of then Governor Bhagat Singh Koshyari in calling Uddhav Thackeray led government to prove the majority in the house."Governor cannot use power not given to him.. Governor is not entitled to enter the political arena and play a role in intra-party to inter-party dispute. He cannot act on the basis that some members want to leave the Shiv Sena," the Bench said in its judgment.Pertinently, the Bench pointed out that there is a difference between the government losing majority and MLAs of incumbent government being unhappy. The dissatisfaction of members is a subjective factor and the same should not have been been relied on by the Governor to call a floor test, the Bench emphasised. Instead, objective criteria ought to have been relied on. "Among 34 MLAs who signed the resolution a few were also ministers and governor concluded that members want to leave the political party... The governor had no objective material on the basis of which he could doubt the objective of the incumbent govt and the dissatisfaction of some members is not enough to call the floor test and he must use objective criteria and not use subjective satisfaction. Even if it is assumed that MLAs wanted to leave the govt... it was only dissatisfaction portrayed... floor test cannot be used as a medium to solve a intra party difference or inter party differences," the judgment of the constitution bench said. .As such, former Maharashtra Governor Bhagat Singh Koshyari was wrong to call a floor test was wrong, the Bench concluded. "Governor was wrong to conclude that Uddhav Thacheray had lost majority. Lack of security is not a reason to conclude that a govt has fallen and it was nothing but an extraneous reason to be relied upon by the governor. The discretionary power of governor under article 163 is for explicit stated subjects in the constitution," the Bench held..However, the Bench concluded that even though the Governor was wrong in ordering floor test, since Thackeray did not face the test and instead, resigned, nothing can be done and status quo cannot be restored. Therefore, the Shinde government can continue..The case has its genesis in the split of the Shiv Sena into two factions, one led by Thackeray and the other by Shinde, who went on to replace the former as Maharashtra's Chief Minister in June 2022.On February 17 this year, 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 in the Assembly as against the Thackeray faction's 15..The issues on which arguments were advanced in the course of the hearings included:Validity of the decision of former Governor Bhagat Singh Koshyari to ask former Chief Minister Uddhav Thackeray to face a floor test. Validity of Governor's decision to ask rebel faction leader Eknath Shinde to take oath as Chief Minister. Power of the Speaker to act under the Tenth Schedule of the Constitution and whether he could be incapacitated from acting under anti-defection law if a notice seeking his removal from the office is pending. 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. Whether 2016 Supreme Court judgment by a five-judge Constitution Bench in the Nabam Rebia case (relating to the 2016 political crisis in Arunachal Pradesh) which had ruled that a Speaker stands disabled to act under the Tenth Schedule to curb defection, requires to be revisited and referred to a seven-judge bench..Read more about the judgment of the Constitution Bench and how it dealt with these issues here. .[Read Judgment].Maharashtra Politics: Shinde to continue as CM though Governor was wrong to conclude Uddhav Thackeray had lost majority: Supreme Court.Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.