Governor Could Not Have Entered Into Internal Party Matters, Status Quo Ante Cannot Be Restored: Constitution Bench In Shiv Sena Case

The Constitution Bench of the Supreme Court has referred the previous Constitution Bench judgment in the matter of Nabam Rebia to a larger bench, which was relied upon by the Shinde Group in the cross petitions concerning the political upheaval between the two Shiv Sena factions in the State of Maharashtra.

The Court has further held that the Governor could not have entered the arena in intra-party disputes and inter-party disputes. Moreover, for the rift between the party, floor test should not have been used as a medium to resolve issues within the party. Further, the Court held that from the dissatisfaction it could not have been inferred that the MLAs intended to withdraw their support from the party. The Court held that the letter relied on by the Governor did not convey that the party had lost the confidence of the house.

The Constitution Bench comprising CJI D.Y. Chandrachud, Justice M.R. Shah, Justice Krishna Murari, Justice Hima Kohli and Justice P.S. Narasimha pronounced the judgment in the cross-petitions, which it had reserved on March 16, 2023. 

On the question of what the impact of deletion of paragraph 3 of the tenth schedule is, the Court held that under the defence of the split is no longer available to members who face disqualification proceedings in a case where split has occurred.

Observations:

"Deputy Chief Minister of the State Devendra Fadnavis and the 7 MLAs could have well moved a motion of confidence".

"The letter relied on by the Governor did not indicate that the incumbent government had lost confidence of the house".

However, on the relief of Status Quo Ante sought by the Thackeray faction, whereby Thackeray was sought to be reappointed as the Chief Minister, the bench was of the opinion that Thackeray did not face the floor test and had submitted his resignation. Therefore, the court can not quash a resignation that has been tendered voluntarily. 

Conclusions:

-The judgment Nabam Rebia is referred to a larger bench. 

-The petitions without containing extraordinary circumstances, did not warrant Court's intervention as it does not ordinarily adjudicate upon petition for disqualification.

-MLA has a right to participate in proceedings of the house which shall not be subject to disqualification.

-The Speaker and Election Commission of India are empowered concurrently to adjudicate on the petitions before them under the 10th schedule and under para 15 of the Election Symbols (Reservation and Allotment) Order, 1968 respectively. 

-Political party and not the legislature party appoints whip.

-Governor was not justified in asking to prove a majority based on the floor test because he had no objective material before him.

Senior Advocates Kapil Sibal and A M Singhvi, had appeared for the Uddhav Thackeray faction of the Shiv Sena, and had also sought a reference of the cases to a seven-judge bench to have a re-look at the Nabam Rebia judgement. Senior Advocates Harish Salve and N K Kaul, appeared for the Shinde group. Solicitor General Tushar Mehta had appeared for the Maharashtra Governor.

Pursuant to a split in the party, the former Governor Bhagat Singh Koshyari had called for a floor-test, upon which Uddhav Thackeray had resigned. Thus the Governor through an order invited Eknath Shinde to form the government with the Bharatiya Janata Party (BJP). The validity of the same came to be challenged in the petitions.

The June 2022 political crisis in Maharashtra led to two factions in the State-with one Shiv Sena under Chief Minister Eknath Shinde and the other led by Uddhav Thackeray. Consequent to which, Eknath Shinde took over the State as the Chief Minister. Interestingly, on February 17, 2023, the Election Commission (EC) recognised the Shinde faction as the real Shiv Sena based on the majority in the Maharashtra Assembly. The Election Commission under Paragraphs 15 and 18 of the Election Symbols (Reservation and Allotment) Order, 1968 had allotted the party name “Shiv Sena” and the party symbol “Bow and Arrow” to the faction led by Eknath Shinde. The rationale was based on the commanded majority in the Assembly where Shinde-led Shiv Sena had 40 MLAs while Thackeray could manage only 15.

In 2016, a five-judge constitution bench, while deciding the Nabam Rebia case from Arunachal Pradesh, had held that the assembly speaker cannot proceed with a plea for disqualification of MLAs if a prior notice seeking removal of the speaker is pending decision in the House.

The judgment had come to the rescue of the rebel MLAs led by Eknath Shinde, now the chief minister of Maharashtra. The Thackeray faction had sought their disqualification even while a notice of the Shinde group for the removal of Maharashtra Assembly deputy speaker Narhari Sitaram Zirwal, a Thackeray loyalist, was pending before the House.