New Delhi: A five-judge bench of the Supreme Court held Thursday that former Maharashtra Governor Bhagat Singh Koshyari was not “justified” in asking then chief minister Uddhav Thackeray to face a floor test in the wake of the crisis in his party, the undivided Shiv Sena.
“He did not have reasons based on objective material before him to reach the conclusion that Thackeray had lost the confidence of the House,” observed the bench led by Chief Justice of India D.Y. Chandrachud.
The bench, also comprising Justices M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha, said: “The governor ought to apply his mind to the communication (or any other material) before him to assess whether the government seems to have lost the confidence of the House.”
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, the court ruled.
Further, the court declared that the Speaker’s decision to appoint a whip from the Eknath Shinde group was “contrary to law”.
It was referring to the events of 3 July, 2022, when newly-elected Speaker Rahul Narwekar appointed Bharat Gogawale from the Shinde faction of the Shiv Sena as chief whip of the party instead of the Thackeray faction’s nominee.
A whip, the SC held, can only be nominated by the political party and not the legislative party (which comprises a party’s legislatives).
The court rejected the Shinde group’s contention that the Speaker had correctly accepted its nominee for a whip because the latter was designated by a legislative party that exercises a similar authority as the political party and that the two are “inextricably intertwined”.
The court said the Speaker should have held an independent inquiry on the basis of the rules and regulations of the then Shiv Sena political party to identify the authorised whip.
However, the bench did not restore Thackeray as the chief minister of Maharashtra because he did not face the floor test and had tendered his resignation on 29 June, 2022. Shinde is now the chief minister of the state.
The bench pointed out that Shinde’s appointment as chief minister was not bad in law because he wasn’t a disqualified legislator, as was contended by the Thackeray faction of the Shiv Sena. Further, the governor was justified in inviting Shinde to form a government in Maharashtra at the behest of the BJP, since Thackeray had resigned from his post.
The SC’s ruling came on a batch of petitions arising out of the intra-party rift in the Shiv Sena last year that led to a political upheaval in Maharashtra, which finally resulted in change of government in the state.
The Shinde-led rebel faction of the party, with support from the majority of Shiv Sena MLAs as well as the BJP, formed the new government after Thackeray resigned following Koshyari’s mandate to him to face a floor test and the top court’s refusal to grant an interim stay on it.
The batch of petitions that were heard included pleas filed by members from both Shiv Sena factions. Shinde was the first to move a petition in the Supreme Court in June 2022, challenging the disqualification notices issued by then Deputy Speaker Narhari Zirwal against the rebel MLAs.
Later, the Thackeray group also moved the top court, questioning Koshyari’s decision to call for a trust vote, the swearing-in of Shinde as CM and election of Speaker Narwekar.
The Shinde faction had voted in favour of Narwekar as Speaker, while 16 MLAs from the Thackeray-led camp had voted against him.
In August 2022, the then Chief Justice of India N.V. Ramana had referred the petitions to a Constitution Bench and framed 11 questions for consideration and adjudication.
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‘Governor not empowered to play role in party disputes’
Thursday’s ruling referred to a larger bench of seven judges the question whether a Speaker is injuncted from hearing disqualification petitions against legislators in case a motion of his removal is pending.
In 2016, a constitution bench of five judges, led by then Chief Justice of India J.S. Khehar, had held that a Speaker cannot issue disqualification notices when a notice seeking his/her removal is pending.
The Thackeray faction had questioned the correctness of this judgment, which the SC said Thursday shall be adjudicated by a larger bench.
However, the court declined to accept the Thackeray group’s argument that disqualification petitions against MLAs can be directly filed before either the top court or a high court and that it is not necessary to always approach the Speaker first.
“This court cannot ordinarily adjudicate disqualification petitions under the Tenth Schedule (pertaining to defection) in the first instance. There are no extraordinary instances in the instant case that warrant the exercise of jurisdiction of this court to adjudicate disqualification petitions,” the court held.
According to the judgment, an MLA has the right to participate in the proceedings of the House regardless of disqualification proceedings pending against him, and the validity of the proceedings of the House in the interregnum is not subject to the outcome of the such disqualification proceedings.
Apart from faulting the then Maharashtra governor for asking Thackeray to face the floor test in June last year, the SC verdict has laid down the principle that will now have to be followed by the current Speaker of the Maharashtra Assembly to decide cross-disqualification petitions pending against members of both Shiv Sena factions.
The governor, the court added, had no objective material on the basis of which he could doubt the confidence of the incumbent (Thackeray-led) government. The resolution sent to him by the Shinde group on 21 June, 2022 did not express the desire to withdraw support from the Maha Vikas Aghadi government (of which Thackeray was the leader) or exit it.
Hence, he erred in relying upon the resolution signed by a faction of the Shiv Sena Legislature Party (SSLP) MLAs to conclude that Thackeray had lost the support of the majority of the House, the court noted.
“Even if it is assumed that the MLAs implied that they intended to exit from the government, they only constituted a faction of the SSLP and were, at most, indicating their dissatisfaction with the course of action adopted by their political party,” noted the bench.
The communication expressing discontent is not sufficient for the governor to call for a floor test, the court held. He should have formed an opinion based on objective criteria as to whether he possessed relevant material.
“Once a government is democratically elected in accordance with law, there is a presumption that it enjoys the confidence of the House. There must exist some objective material to dislodge this presumption,” said the court.
Dissent and disagreement within a political party must be resolved in accordance with the remedies prescribed under the party’s constitution or through any other method the party chooses to opt for, and a floor test is not a solution for it, according to the court.
Neither the Constitution nor the laws enacted by Parliament provide for a mechanism by which disputes among members of a particular political party can be settled. But they certainly do not empower the governor to enter the political arena and play a role (however minute) either in inter-party disputes or in intra-party disputes, said the court.
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‘Political party & legislature party not the same’
The SC judgment makes an in-depth analysis of the Tenth Schedule of the Constitution (or the anti-defection law) to draw a distinction between a legislative party and a political party, and holds that it’s the latter that is entitled to appoint a whip under the law.
Though “political party” is not defined in the Tenth Schedule, it is mentioned several times in various explanations provided in the anti-defection law where the said term has specifically been used.
The explanations, cited by the court, talk about an elected member belonging to a “political party”, merger of a “political party” and a split in the original party.
The court thus concluded that “political party” and “legislature party” cannot be conflated.
The Tenth Schedule, it noted, recognises the independent existence of the legislature party to a limited extent, which is to allow intra-party dissent in case a substantial number of legislators disagreed with a political party.
While the Tenth Schedule provides for disqualification proceedings against someone who violates the party’s whip, it does not construe a merger by two-thirds of legislators with another political party as defection.
On a literal interpretation of the provisions of the Tenth Schedule, the direction to vote or abstain from voting arises from the political party and not the legislature party, the court held, adding: “To read the term ‘political party’ as ‘legislature party’ would be contrary to the plain language of the Tenth Schedule.”
Describing the whip as a “figurative umbilical cord” which connects a member of the House to the political party, the court said: “When the anti-defection law seeks to curb defections from a political party, it is only a logical corollary to recognise that the power to appoint a whip vests with the political party.”
“That a whip be appointed by the political party is crucial for the sustenance of the Tenth Schedule. The entire structure of the Tenth Schedule which is built on political parties would crumble if this requirement is not complied with. It would render the provisions of the Tenth Schedule otiose and have wider ramifications for the democratic fabric of this country,” said the court, as it declared that a constitutional court can inquire into the validity of the action of the Speaker in recognising the whip.
Further, the court relied upon the Symbols Order — framed by the Election Commission (EC) and dealing with grant of symbols to national political parties — to back its opinion that only a political party can appoint a whip. The Symbols Order, it said, recognises only a legislator and a political party.
In the instant case, the court said, the Speaker — elected following differences in the Shiv Sena — was aware of the emergence of two factions in the SSLP. He appointed a new whip (Gogawale) and recognised a new leader of the SSLP (Shinde) after receiving a letter from the Shinde faction. This communique specifically mentioned that a “split had occurred” in the Shiv Sena.
This was not the case on 21 June, 2022, when the then acting Speaker (Narhari Zirwal) had recognised Ajay Choudhari as the Shiv Sena whip. This was communicated to him by Thackeray on behalf of the political party. Hence, the court declared this appointment as legal.
“The Speaker on taking cognisance of the resolution passed by the faction of SSLP led by Mr Shinde did not attempt to identify which of the two persons was nominated by the political party (Shiv Sena),” said the court, while holding the Speaker’s decision to recognise Gogawale as the chief whip of the Shiv Sena as illegal.
The Speaker must recognise the whip and the leader who are duly authorised by the political party with reference to the provisions of the party constitution, after conducting an inquiry in this regard and in keeping with the principles discussed in this judgment, the court said.
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SC refuses to ‘harmonise proceedings’
The SC declined to lay down a “constitutional sequence” to “harmonise proceedings” for disqualification under the Tenth Schedule before the Speaker, notice of removal of the Speaker and on the allotment of an election symbol under the Symbols Order that is heard by the EC.
The Thackeray faction wanted this direction to ensure that a member of the House is unable to reap the fruits of defection within the House.
It had argued that petitions filed by the rebel group or split faction of a political party for allotment of symbols before the EC, and disqualification petitions against the defected members before the Speaker, should not be heard concurrently. It had suggested that the EC should not proceed with hearing until the Speaker rules on the disqualification petitions.
Declining to give such a direction, the court held that in the event the members of a party faction that is awarded the symbol are disqualified from the House by the Speaker, the members of that group will have to follow the procedure under the law for allotment of fresh symbols to their group.
While the disqualification proceeding before the Speaker cannot be stayed in anticipation of the decision of the EC, the converse too is not possible, the court said.
However, in case the EC’s decision is pronounced before the Speaker adjudicates, the latter shall not rely upon the EC order for proceedings. This is because EC orders have prospective effect, the court said.
For the Speaker to base their decision on the outcome of the EC case would mean giving the EC ruling a prospective effect which, according to the judgment, would be contrary to the law.
“The EC is a constitutionally entrenched institution which is entrusted with the function of superintendence of and control over the electoral process. The EC, which is a constitutional authority, cannot be prevented from performing its constitutional duties for an indefinite period of time. Proceedings before one constitutional authority cannot be halted in anticipation of the decision of another constitutional authority,” the SC observed.
The court further said that in arriving at a decision as to which group should be granted the symbol held by the “original political party”, the EC need not rely on the test of majority in the legislature alone. In cases similar to the present one, the court said, it would be futile to assess which group enjoys a majority in the legislature.
The EC, the court explained, must look to other tests in order to reach a conclusion, which may include an evaluation of the majority in the organisational wings of the political party, an analysis of the provisions of the party constitution, or any other appropriate test.
But it is not necessary that the decision of the EC under the Symbols Order must be consistent with that of the Speaker on the disqualification petitions, the court added. This is because each authority would base its decision on different considerations and for different purposes.
‘Neither faction can argue they are original political party’
Moving on to how the current Speaker should decide the pending disqualification petitions of the two factions of the Shiv Sena, the bench said that neither of the two groups, led by Shinde and Thackeray, can argue that they are the original political party as a defence against disqualification on the ground of defection.
“In cases where a split has occurred in a political party or in a legislature party, members of neither faction may validly raise the defence that they are the political party in the event that each faction files petitions for the disqualification of members of the other faction,” observed the court.
It, therefore, asked the Speaker to determine who the “real” political party is, while adjudicating on disqualification petitions. In arriving at this decision, the Speaker must consider the constitution of the party as well as any other rules and regulations which specify the structure of the leadership of the party, the court said.
In case the rival groups submit two or more versions of the party constitution, the Speaker must consider the version which was submitted to the EC before the rival factions emerged.
“In other words, the Speaker must consider the version of the party constitution which was submitted to the EC with the consent of both factions,” the court clarified. This is to obviate a situation where both factions attempt to amend the constitution to serve their own ends.
Determination of which is the original political party need not be based on which group possesses a majority in the assembly. “This is not a game of numbers, but of something more. The structure of leadership outside the Legislative Assembly is a consideration which is relevant to the determination of this issue,” the court said.
(Edited by Nida Fatima Siddiqui)
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