Maharashtra Political Crisis Day #7: Did the Governor Legitimise Political Defection?

Disqualification Proceedings Against Maharashtra MLAs

Judges: D.Y. Chandrachud CJI, M.R. Shah J, Krishna Murari J, Hima Kohli J, P.S. Narasimha J

Joyston D'Souza | 28th Feb 2023

A skeptical Bench questioned the Eknath Shinde faction on their ‘split’ from the Shiv Sena last year. Senior Advocate Neeraj Kishan Kaul, for the Shinde faction, attempted to convince the Court that they did not commit defection and that the Shinde faction would have formed the government despite the Thackeray faction’s objections.

Background

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.

Sr. Adv. A.M. Singhvi: Governor Actions Were Biased Towards Shinde Faction

Sr. Adv. A.M. Singhvi briefly summarised his arguments for the Thackeray faction:

  1. The Speaker’s power as the constitutionally appointed tribunal in matters of defection cannot be disabled.
  2. The Governor cannot impart legitimacy to a defecting faction of a political party by enabling them to form a government through unconstitutional means. Further, being an executive appointee, the Governor has no role to play in a legislative issue. 
  3. The Governor cannot direct a House of the legislature to hold a floor test. Instead, members of the House must move a motion of no-confidence.
  4. Members defecting from a political party cannot escape the consequences of defection merely on a technicality. The purpose of the 10th Schedule—preventing the Constitutional sin of defection—must be fulfilled.

Sr. Adv. N.K. Kaul: Governor Is Duty-Bound to Test the Legislature’s Confidence in the Government

Right at the outset, Senior Advocate Neeraj Kishan Kaul addressed the contention that the Governor erroneously called for a trust vote in the Maharashtra Legislative Assembly. Mr. Kaul argued that this very premise was flawed since a constitutional authority’s (the Governor’s) decision cannot be ignored. He also pointed out that the Governor was duty-bound to order a floor test upon receiving communication from the 34 MLAs that they had lost faith in the Maha Vikas Agadi government. 

Mr. Kaul fortified his argument with the 9-Judge decision in S.R. Bommai v Union of India (1994). As per Bommai, he claimed, the Governor could gather required information ‘by whatever process or means’ if there is a credible doubt over the House’s confidence in a ministry. The only known mechanism to do so is a floor test.

Can the Floor Test Be Carried Out Independent of the Disqualification Proceedings?

CJI D.Y. Chandrachud pointed out that the results of the floor test would be affected by the results of the disqualification proceedings pending against the members of the Shinde faction. Justice M.R. Shah explained that if the MLAs from the Shinde are disqualified for defection under the 10th Schedule of the Constitution, they will be considered to have been disqualified from the date on which disqualification proceedings were initiated against them. This will necessarily mean that the votes cast by them in the floor test will be invalid. Further, it was the SC’s June 27th Order that allowed the floor test to take place before the disqualification proceedings. 

Mr. Kaul countered this by arguing that the disqualification proceedings under the 10th Schedule and the floor test operate in entirely different fields. He stressed that when legislators cease to support a ministry, the correct course of action would be to conduct a floor test.

Furthering his arguments on the impartiality of the Governor, Mr. Kaul highlighted that the Governor did not decide which faction should form the government. Instead, he called for a floor test to assess whether the MVA government enjoyed the confidence of the House and swore in Mr. Shinde as the Chief Minister based on subsequent developments. 

Still unconvinced, CJI Chandrachud pointed out the flaw in this argument. If the disqualification proceedings against the Shinde faction are not carried out, then the entire purpose of the 10th Schedule (preventing defection) would be defeated. Mr. Kaul responded that there was no question of defection. The Shinde faction did not leave the party. Instead, they represented the Shiv Sena party and not the Uddhav Thackeray faction. This claim must be decided by the Election Commission of India (ECI).

CJI Chandrachud pointed out that on June 30th, 2023, there was no decision by the ECI. In fact, only the original party existed on that date, added Justice Hima Kohli. Unphased, Mr. Kaul responded that there was internal dissent in the party which can only be decided by ECI. Moreover, former CM Uddhav Thackeray resigned before the floor test was conducted knowing that he did not enjoy the confidence of the majority of the party members. 

Sr. Adv. N.K. Kaul: Shinde Faction Withdrew From the MVA Alliance, Not the Shiv Sena Party

CJI Chandrachud enquired as to what objective material did the Governor consider before taking a decision? Mr. Kaul pointed out that the Governor exercised his discretion based on the 34 Shiv Sena MLAs and the 7 independent MLAs who wrote to him expressing that they had no confidence in the Thackeray government and the MVA alliance. This indicates that party members no longer supported the former CM Thackeray. 

CJI Chandrachud pointed out that the head of the Shiv Sena political party did not say they were withdrawing from the alliance. Once a government is formed, members of a legislature party cannot say they do not support an alliance inside the House. They must express their objections to the political party leader. The CJI stated that the Governor, by accepting their internal disquiet, effectively validated a split by the breakaway Shinde faction.

 Mr. Kaul countered by stating that the Governor does not deal with the 10th Schedule. His function is to uphold political accountability in the state legislature without favouring any party. Further, if the Whip appointed by the Shinde faction was the real Shiv Sena Whip, then the Shinde faction effectively represents the will of the real Shiv Sena.

Mr. Kaul will resume his arguments tomorrow (March 1st, 2023)