Maharashtra political row: Can’t restore Uddhav govt as he resigned without floor test, says SC

As a Constitution bench of the Supreme Court delivers its verdict on the matter related to the rift within the Uddhav Thackeray and Eknath Shinde camps of the erstwhile Shiv Sena party, here is an overview of the developments that have transpired so far.

supreme court
A Constitution bench of the Supreme Court to deliver its verdict on the Maharshtra political crisis

In the matter related to the Maharashtra political crisis, a five-judge Constitution bench of the Supreme Court led by Chief Justice DY Chandrachud held that it cannot order the restoration of the Uddhav Thackeray government as he resigned without facing a floor test, reported Live Law.

A Constitution bench of the Supreme Court on Thursday pronounced the crucial judgement in the case related to the rift within the Uddhav Thackeray and Eknath Shinde camps of the erstwhile Shiv Sena party, which led to the collapse of the Uddhav Thackeray government in Maharashtra in July last year.

The top court bench also comprising Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha, however, said that the Maharashtra Speaker’s decision to appoint Bharat Gogawale of Shinde faction as whip of Shiv Sena party was illegal.

“The Speaker was aware of the emergence of two factions in the legislative party on 3 July 2022 when he appointed a new whip,” the bench said.

“The Speaker did not attempt to identify which of the two persons – Mr. Prabhu or Mr. Gogawale- was the whip authorised by the political party. Speaker must recognize only the whip appointed by the political party,” the CJI said.

The apex court bench also referred the 2016 Nabam Rebia five-judge verdict related to power of speaker on disqualification of MLAs to a larger bench, and said that issues such as whether motion for Speaker’s removal will restrict his powers to issue disqualification notices need examination, reported Live Law.

A five-judge Constitution Bench started hearing the batch of petitions related to the case in February.

The batch of petitions includes one filed by Eknath Shinde in June 2022 challenging notices issued by the then Deputy Speaker against rebel Shiv Sena MLAs over alleged defection. The petitions by the Thackeray goup filed in the apex court challenged the Maharashtra governor’s decision to call for a trust vote, Eknath Shinde’s swearing-in ceremony as the CM and the election of a new assembly speaker, Live Law reported.

The verdict, expected to come today, is on the Thackeray faction’s plea to disqualify Eknath Shinde, Sandipanrao Bhumre, Abdul Sattar, Tanaji Sawant, Sanjay Shirsat, Yamini Jadhav, Chimanrao Patil, Bharat Gogawale, Lata Sonawane, Ramesh Bornare, Prakash Surve, Balaji Kinikar, Mahesh Shide, Anil Babar, Sanjay Raimulkar and Balaji Kalyankar from the Maharashtra assembly.

Meanwhile, ahead of the Supreme Court verdict on the disqualification plea, Maharashtra Assembly Speaker Rahul Narwekar said the current state government has the majority no matter what verdict the Supreme Court delivers, adding that as per the law, the decision to disqualify MLAs can be taken only by the Speaker of the House and no other constitutional body can take that power away from the Speaker.

Petitions referred to Constitution Bench

In August 2022, a three-judge bench led by the then Chief Justice of India NV Ramana referred the petitions to a Constitution Bench, raising the following issues:

  • Whether the notice of removal of the speaker restricts him from continuing the disqualification proceedings;
  • Whether a petition under Article 226 and Article 32 lies inviting a decision on a disqualification proceeding by the High Courts or the Supreme Court, as the case may be?
  • Can a court hold that a member is ‘deemed’ to be disqualified, by virtue of their actions, absent a decision by the Speaker?
  • What is the status of proceedings in the House during the pendency of disqualification petitions against the members?
  • If the decision of a Speaker that a member has incurred disqualification relates back to the date of the action complained of, then what is the status of proceedings that took place during the pendency of a disqualification petition?
  • What is the impact of the removal of Paragraph 3 of the Tenth Schedule?
  • What is the scope of the power of the Speaker to determine the Whip and the leader of the house legislature party? What is the interplay of the same with respect to the provisions of the Tenth Schedule?
  • Are intra party decisions amenable to judicial review? What is the scope of the same?
  • What is the extent of discretion and power of the Governor to invite a person to form the government, and whether the same is amenable to judicial review?
  • What is the scope of the powers of the Election Commission of India (ECI) with respect to determination of a split within a party?

Nabam Rebia

A preliminary issue was raised by the Uddhav camp that the case should be referred to a larger bench to reconsider the dictum laid down in the Nabam Rebia (2016) judgment that Speakers cannot issue disqualification notices when a notice seeking their removal are pending. After hearing the arguments for three days, the bench decided to consider this preliminary issue along with the merits of the case. On the same day, the Election Commission of India allocated the party name and coveted bow and arrow symbol to Shinde’s faction.

Both camps, claiming to be the real Shiv Sena, had moved the EC seeking the party’s name and the electoral symbol.

Hearing begins

From February 21, the bench started hearing the matter on merits. Senior Advocates Kapil Sibal, Dr. Abhishek Manu Singhvi, and Devadatt Kamat argued for the Uddhav camp. Senior Advocates Neeraj Kishan Kaul, Harish Salve, Mahesh Jethmalani and Maninder Singh argued for the Shinde faction. Solicitor General of India Tushar Mehta argued on behalf of the Maharashtra Governor.

Arguments raised by the Uddhav Thackeray faction were as follows:

  • Wrongful presumption of “split” in the party as it was contended that the Shinde faction never argued that there existed a split in the party. Despite the same, the ECI has recognised a split in the party;
  • 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;
  • Toppling of the MVA government as it could set a precedent for toppling down any government and would enable defections in case the court upholds the Eknath Shinde faction as the official Shiv Sena;
  • Speaker acted in a biased manner as it was not for the newly elected Speaker to replace the whip and the legislative party leader of the Shiv Sena appointed by the party Chief Uddhav Thackeray;
  • No defence for the 40 MLAs who joined the Shinde camp as members of the legislative assembly could not act independent of their political party;
  • Governor acted unconstitutionally as the Governor was not empowered in law to recognise rebel MLAs of a political party and legitimise their actions

Fallout of the Shiv Sena Split

Present, Maharashtra Chief Minister Eknath Shinde alongwith 40 party MLAs rebelled against Shiv Sena supremo and then Chief Minister Uddhav Thackeray , eventually bringing down the Maha Vikas Aghadi (MVA) government (comprising of the Shiv Sena, the Nationalist Congress Party and the Indian National Congress).

The faction led by Uddhav Thackeray – whose father Bal Thackeray had founded the Shiv Sena in 1966 – was reduced to a minority in the Assembly and Shinde was sworn in as the chief minister on June 30 with the BJP’s support.

MVA origins

The Maha Vikas Aghadi government was formed after the Shiv Sena and the BJP broke off their alliance after the 2019 Assembly elections, as the saffron party refused to agree on each sharing the chief minister’s post for two-and-a-half years.

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First published on: 11-05-2023 at 09:00 IST