Former Maha Guv "not justified" in calling floor test, but can't restore MVA govt as Uddhav resigned voluntarily: SC

New Delhi: The Supreme Court on Thursday held that former Maharashtra Governor Bhagat Singh Koshyari was "not justified" to call for a floor test based on the request of Eknath Shinde faction since he did not have enough objective material before him to conclude that the then Chief Minister Uddhav Thackeray had lost the confidence of the House.

A five-judge Constitution bench of Chief Justice of India DY Chandrachud and Justices MR Shah, Justice Krishna Murari, Justice Hima Kohli and PS Narasimha said it could not disqualify the Eknath Shinde-led Maharashtra government and reinstate Uddhav Thackeray as Chief Minster because the latter had chosen to resign instead of facing a test of strength in the Assembly.

"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. The Governor was justified in inviting Mr Shinde to form the government," the bench said in its 141-page verdict.
The Governor had no objective material on the basis of which he could doubt the confidence of the incumbent government, the bench said, adding that he ought to apply his mind to the communication before him to assess whether the government seemed to have lost the confidence of the House.

"The resolution on which the Governor relied did not contain any indication that the MLAs wished to exit from the MVA government. The communication expressing discontent on the part of some MLAs is not sufficient for the Governor to call for a floor test. The Governor ought to apply his mind to the communication (or any other material) before him to assess whether the Government seemed to have lost the confidence of the House," the verdict stated.

It further said that the political imbroglio in Maharashtra arose as a result of party differences within the Shiv Sena.
"However, the floor test cannot be used as a medium to resolve internal party disputes or intra-party disputes. Dissent and disagreement within a political party must be resolved in accordance with the remedies prescribed under the party constitution, or through any other methods that the party chooses to opt for," the bench held.

It added, "There is a marked difference between a party not supporting a government, and individuals within a party expressing their discontent with their party leadership and functioning."

It further said that the Governor is the "titular head of the State government" and he is a constitutional functionary who derives his authority from the Constitution.

"This being the case, the Governor must be cognisant of the constitutional bounds of the power vested in him. He cannot exercise a power that is not conferred on him by the Constitution or a law made under it," the top court said.
The top court said there were no communications relied on by the Governor indicating that the dissatisfied MLAs wanted to withdraw support to the government. The Governor erred in relying on the resolution of a faction of MLAs of Shiv Sena to conclude that Uddhav Thackeray had lost the support of the majority of MLAs.

"The exercise of discretion by the Governor, in this case, was not in accordance with law," the bench opined.
The judgement of the apex court came on a batch of petitions filed by rival groups of the Shiv Sena in relation to the Maharashtra political crisis.

The Whip has to be appointed by a political party, the top court said. The apex court held that the Speaker's decision to appoint Bharat Gogawale (Eknath Shinde) as the whip of the Shiv Sena party was illegal.
"The political party and not the legislature party appoints the Whip and the Leader of the party in the House. Further, the direction to vote in a particular manner or to abstain from voting is issued by the political party and not the legislature party. The decision of the Speaker as communicated by the Deputy Secretary to the Maharashtra Legislative Assembly dated July 3, 2022, is contrary to law.

The Speaker shall recognise the Whip and the Leader who are duly authorised by the Shiv Sena political party with reference to the provisions of the party constitution, after conducting an enquiry in this regard and in keeping with the principles discussed in this judgement," it held.

The apex court further said that the Speaker must decide on disqualification petitions within a reasonable time.
It also said that MLA has the right to participate in the proceedings of the House regardless of the pendency of any petitions for their disqualification. "The validity of the proceedings of the House in the interregnum is not "subject to" the outcome of the disqualification petitions," it added.

In August last year, the top court's three-judge bench had referred to a five-judge Constitution bench the issues involved in the petition filed by rival groups of Shiv Sena in relation to the Maharashtra political crisis.
On June 29, 2022, the top court gave a go-ahead to the floor test in the Maharashtra Assembly on June 30. It had refused to stay the Maharashtra Governor's direction to the then Chief Minister Uddhav Thackeray to prove his majority support on the floor of the House on June 30.

After the apex court's order, Uddhav Thackeray announced his resignation as the Chief Minister and Eknath Shinde was later sworn in as the Chief Minister of the State. (ANI