Shiv Sena Case Analysis

Subhash Desai Anish R. Shah Versus Principal Secretary, Governor Of Maharashtra And Ors.

W.P.(C) No. 493/2022

Constitution Bench comprising of : Chief Justice D.Y. Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha. 

Senior Advocates on behalf of Uddhav Thackeray(Petitioner): Kapil Sibal, Dr. Abhishek Manu Singhvi, and Devadatt Kamat

Senior Advocates for Eknath Shinde (Respndent): Neeraj Kishan Kaul, Harish Salve, Mahesh Jethmalani and Maninder Singh argued for Eknath Shinde. 

 Solicitor General of India Tushar Mehta argued on behalf of the Maharashtra Governor. 

INTRODUCTION 

The long-awaited judgment pertaining to the rift within the Shiv Sena party between Uddhav Thackeray and Eknath Shinde groups, which led to the change in the government in Maharashtra in July 2022 was held on May 11 2023. 

The first petition was filed by Eknath Shinde in June 2022 challenging the notices issued by the then Deputy Speaker against the rebels under the tenth schedule of the Constitution over alleged defection. 

 Later, the Thackeray group filed petitions in the Supreme Court challenging the decision of the Maharashtra Governor to call for a trust vote, the swearing-in of Eknath Shinde as the Chief Minister of the Government with the backing of BJP. 

ANTI DEFECTION LAWS: AN ANALYSIS 

Defection is the act of leaving a political party to join another one.The anti-defection law was enacted to ensure that a party member does not violate the mandate of the party and in case he does so, he will lose his membership of the House. 

The law applies to both Parliament and state assemblies. The Tenth Schedule was inserted in the Constitution in 1985. It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.

ISSUES  

1. Whether the notice of removal of the speaker restricts him from continuing the disqualification proceedings under Schedule X of the Indian Constitution and that whether a court can hold that a member is deemed to be disqualified by virtue of his/her actions absent a decision by the Speaker?
2. What is the scope of the power of the Speaker to determine the whip and leader of house of the legislative party?
3. Power of the governor to invite a person to form the government and whether the same is amenable to judicial review?
4. What is the scope of the powers of Election Commission of India with respect to deter an ex parte split within a party. 

GOVERNOR’S ARGUMENTS  

The primary contention raised by the Governor was that owing to the objective material provided to the Governor, which included the resolution moved by 34 Shinde group MLAs reaffirming leadership of Eknath Shinde, the letter by 47 MLAs about violent threats issued by the Uddhav group against them, and the letter by the leader of opposition, the Governor was duty bound to call for a floor test. It was maintained that running the government after losing the confidence of the house was a mistake to which the governor could not have been a party and that it was the constitutional duty of the governor to ensure that the administration enjoys the support of the house. 

A floor test is primarily taken to know whether the executive enjoys the confidence of the legislature. Article 175(2) of the Indian Constitution gives the Governor the power to summon the members of the House and call for a floor test to prove whether the incumbent government has the majority in the State Legislative Assembly (Vidhan Sabha). 

ARGUMENTS BY UDHAV THAKREY’S FACTION  

The Thackeray team argued that the new government had been elected because of the orders passed by the court on June 27 and then June 29. As per the order of June 27, the Apex Court granted interim relief to Eknath Shinde by extending the time to file responses to the disqualification notices. 

Later, on June 29, the court gave the go-ahead to a floor test called by the governor. Contending that an initial wrong in a judicial order would result in all subsequent consequences to fall through, the Thackeray faction requested for the restoration of status quo ante as on June 27, 2022 so that parties were restored to the same position as it were but for the interim orders of the court. 

It was also argued that ECI has recognized a split in the party. Further, the Tenth Schedule did not recognize split as a defence and the only defence against disqualification was merger with another party. 

It was argued that it was not for the Speaker to make such appointments but for the Party Chief. By making such appointments, the Speaker had acted in an openly biased manner. 

It was also argued that the Governor was not empowered in law to recognise rebel MLAs of a political party and legitimize their actions as the power to recognize who represents a political party fell within the domain of the Election Commission.

ARGUMENTS BY EKNATH SHINDE’S FACTION  

 The Shinde side claimed that the governor had no choice but to perform a floor test once the Ministry’s assistance was terminated.Therefore, the Governor was not wrong to request a floor test because a sizeable number of MLAs had written to him to let him know that the Ministry no longer had a majority. 

According to the Shinde faction, there were no discussions about a “split” within the party because they claimed to speak for the genuine Shiv Sena, which the Indian Election Commission had officially accepted. 

It was argued that the “floor test”—used by the Thackeray side to argue that the new government would not have been elected but for the court orders—could not apply in the current instance because Uddhav Thackeray never underwent the floor test and quit before the same could occur.  

It was also argued that intra-party dissent was an element of the constitutional scheme and the democracy and could not be considered illegal. 

Another argument by the Shinde group was that the matter fell within the realm of the politics, and not the courts. It was argued that the Speaker could not get into the issue of which group was the real political party, while exercising jurisdiction under the tenth schedule, as that was a question to be decided by the Election Commission. 

JUDGMENT 

The bench cautioned that Governor could not have entered the internal party dispute by ordering the floor test, particularly in absence of any “objective material” to dislodge the presumption of confidence of House ingrained in a democratically elected government. It said letters by some MLAs (or even by then Leader of Opposition in this case) for a direction to the Chief Minister to prove his majority does not, taken alone, amount to a relevant reason to call for a floor test 

The Court placed strong reliance on the MP Political Crisis case (Shivraj Singh Chouhan v. Union of India), which held that the decision to call for a floor test should be based on objective material and reasons which are relevant and germane to the exercise of discretion, and not extraneous to it. 

The Court emphasised that the Governor should not use their discretionary power to destabilise or displace democratically elected governments. 

The Governor was not justified in calling upon Mr. Thackeray to prove his majority on the floor of the House because he did not have reasons based on objective material before him, to reach the conclusion that Mr. Thackeray had lost the confidence of the House. 

However, the status quo ante cannot be restored because Mr. Thackeray did not face the floor test and tendered his resignation; and The Governor was justified in inviting Mr. Shinde to form the government. 

The decision in Shrimanth Balasaheb Patil applied the principle that disqualification relates to the date on which the act of defection takes place to mean that acts or events subsequent to the commission of the conduct prohibited under the Tenth Schedule, do not have an exculpatory effect.  

In other words, subsequent acts or events do not have the effect of curing such conduct or releasing the actor from the consequences which follow. This is consistent with the decision in Rajendra Singh Rana (supra). Mr. Shinde’s appointment is therefore not barred by Article 164(1B) of the Constitution.