Maharashtra Political Crisis Day #6: Sr. Adv. Kapil Sibal Argues That the Governor Wrongly Called For a Trust VoteDisqualification Proceedings Against Maharashtra MLAs
Today, the 5-Judge Constitution Bench continued to hear arguments from Senior Advocates Kapil Sibal, and Abhishek Manu Singhvi who are representing the Uddhav Thackeray faction of the Shiv Sena.
On June 21st, Shiv Sena party member Mr. Eknath Shinde, went missing, along with several Shiv Sena MLAs. On the same day, Mr. Uddhav Thackeray called an emergency party meeting which the rebel MLAs refused to attend. The Shiv Sena removed Mr. Eknath Shinde as the Legislature-Party leader. Mr. Shinde responded claiming that he had the support of over 40 MLAs, and represented a significant portion of the party. He further said that, with a dwindling group of supporters, Mr. Thackeray was no longer the party’s chosen representative.
On June 24th, 2022, Mr. Uddhav Thackeray urged the Deputy Speaker to begin disqualification proceedings against the rebel Shiv Sena MLAs, including Mr. Eknath Shinde, for defecting from the Shiv Sena. On the same day, two independent MLAs moved a ‘no confidence’ motion against the Deputy Speaker Mr. Zirwal, stultifying his power to decide on Shinde’s disqualification.
The next day (June 25th, 2022), Mr. Shinde’s faction of the Shiv Sena challenged the disqualification proceedings before the Supreme Court on two grounds. On June 27th, 2022, a Vacation Bench of the Supreme Court comprising Justices Surya Kant and J.B. Pardiwala issued an unusual Order, staying the disqualification proceedings.
On June 28th, 2022, the Shinde faction requested the Governor of Maharashtra, Mr. Bhagat Singh Koshyari to direct a floor test in the Assembly. Mr. Koshyari agreed to conduct the floor test on June 30th, 2022. Immediately, the floor test was challenged by the Thackeray faction in the Supreme Court. After four hours of arguments, on June 29th, 2022, the Supreme Court refused to stay the floor test. Chief Minister Uddhav Thackeray resigned within the hour, making way for the Shinde faction to consolidate power.
The Thackeray faction argued that the Shinde faction’s actions—disregard for the party Whip, appointment of a new Deputy Speaker, call for a floor test, and insistence of the Shinde faction’s majority—were all acts of defection.
Mr. Sibal: Governor cannot Ask For a ‘Trust Vote’ Unless a Motion of No-Confidence Is Passed By the House.
Mr. Sibal stated that the decision of the Governor of Maharashtra, Mr. Bhagat Singh Koshyari directing the Thackeray government to conduct a ‘trust vote’ on June 30th 2022 was unconstitutional. A ‘trust vote’ is essentially a motion through which the Government of the House shows that it enjoys the ‘trust’ or confidence of the House. He explained that by ordering the trust vote and later administering the oath to Mr. Eknath Shinde as CM of Maharashtra, he (the Governor) was recognising the ‘split’ of the Shiv Sena party. Neither the 10th Schedule nor any other provisions conferred such discretionary powers on the Governor. Instead, this power lies with the Speaker of the House. The Governor’s actions were therefore subject to judicial review.
Mr. Sibal clarified that for the Governor’s direction to be valid, members of the House must have first passed a ‘no-confidence motion. The Governor cannot order a trust vote by himself.
Chief Justice D.Y Chandrachud enquired if the Governor ever has these powers. Mr. Sibal clarified that if the Governor did not have these powers on his own. He only got them if members of the House passed a motion of ‘no-conficence’ and informed the Governor about it. If this is allowed, then the Governor will have the power to help topple a stable government.
Mr. Sibal: Election Commission (EC) Was Wrong in Granting the Party Symbol to the Shinde Faction.
Mr. Sibal argued that EC’s decision to grant the Shiv Sena party symbol to Shinde faction was flawed. He claimed that decision was on two unreliable documents. First, the minutes of a meeting (held by the Shinde faction) from July 18th, 2022. Second, the minutes of a meeting from July 27th, 2022. Both these meetings allegedly recognised Mr. Shinde as the leader of the Shiv Sena Party. Mr. Sibal pointed out that these documents lacked basic information such as the venue or time of the meeting and did not have any signatures of the members present. Moreover, the dates were inconsistent.
Mr. Singhvi: The SC Must Reset the Status Quo Ante of the Shiv Sena Faction
Mr. Singhvi’s main argument today was that the Shinde government was formed as a direct result of the two Orders passed by this Court on June 27th, 2022 and June 29th 2022 respectively. The first Order forbade the disqualifying the Shinde MLAs by giving them more time to respond to their disqualification proceedings. The second Order allowed the trust vote to be held. Without these two Orders, the Government would not have changed.
He stated that the language of the Order is important. The SC stated that the Order was “subject to the final outcome of the writ petition.” As such, the Court must reinstate the Thackeray faction to the position they held before the Orders.
The Bench stated that for the Thackeray government to be reinstated, the Court must be convinced there would be an outcome which would matter. Since Mr. Thackeray resigned on June 30th, 2023, this outcome was prevented from emerging. Had the trust vote been carried out, the matter would have worked itself out.
Mr. Singhvi pushed back by pointing out that after June 30th, 2023, another trust vote was conducted for the Speaker of the House. However, the Shinde faction disobeyed a clear direction by the Shiv Sena Whip (Mr. Sunil Prabhu) to not vote. This happened again on July 4th, 2023 when a ‘trust vote’ for Mr. Shinde was undertaken. Further, the Shinde faction had refused to attend the emergency meeting organised by the Thackeray faction prior to both these incidents. By directly approaching the Governor instead, the Shinde faction had effectively defected from the Shiv Sena.
Mr. Singhvi will continue his arguments on February 28th, 2023 (next tuesday).