Supreme Court's Maha Verdict: Thackeray Denied CM Reinstatement, Governor Blasted! [Read Judgment]

NEW DELHI: The Supreme Court on Thursday rejected then Maharashtra Chief Minister Uddhav Thackeray's plea to declare the then Governor's order to him to face the floor test as illegal, saying he had resigned before the said exercise inside the Legislative Assembly.

The top court castigated the Governor for a direction issued to Thackery to prove his majority in Assembly.

However, it held the Governor was justified subsequently in inviting Shinde to form the government.

With this judgement, the current regime led by rebel Shiv Sena leader Eknath Shinde appears to have survived a major legal challenge for now.

Pronouncing its judgement on a batch of petitions filed by Thackeray and Shinde factions, a five-judge Constitution bench led by Chief Justice of India D Y Chandrachud unanimously held that the Governor had no objective material to conclude that Thackeray as leader of the Maha Vikas Aghadi government (of Cong, NCP and Shiv Sena) has lost the majority as MLAs led by Shinde, since these legislators were dissatisfied with the dispensation but they did not express their desire to withdraw support from the government.

"The Governor was not justified in calling upon 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 Thackeray had lost the confidence of the House. However, the status quo ante cannot be restored because Thackeray did not face the floor test and tendered his resignation," the bench said.

Answering another important legal question, the court also ruled that only Shiv Sena Legislature Party led by Thackeray had the power to nominate chief whip of the party. It declared as illegal a decision of the Speaker to appoint Bharat Gogawale as Chief Whip of Shiv Sena on nomination by Shinde group.

"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 3 July 2022 is contrary to law. The Speaker shall recognize 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," the bench said.

It rejected Shinde faction's contention that chief whip is appointed by the legislature party and not the political party.

In its judgement, the bench, also comprising Justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha, decided to refer the 2016 judgement by the Constitution bench restricting the power of Speaker to decide disqualification petition in view of pendency of motion of removal against him, to a seven-judge Constitution bench due to its effect of the Tenth Schedule (anti defection law).

With regard to the Governor's action after the rebellion by Eknath Shinde and his supporting MLAs, the bench said neither the Constitution nor the law empowered the Governor to enter into the political arena and play a role either in inter-party or intra-party disputes.

It did not approve of the Governor's decision to call for the floor test on the basis of a letter by the BJP leader Devendra Fadanvis and independent MLAs.

But since Thackeray did not face the floor test and resigned, the court noted, it could not restore status quo ante and declare subsequent development of Shinde forming the government as illegal.

The bench also ruled the Supreme Court cannot ordinarily adjudicate petitions for disqualification under 
the Tenth Schedule in the first instance as pleaded by Thackeray group.

"There are no extraordinary 
circumstances in the instant case that warrant the exercise of jurisdiction by this court to adjudicate disqualification petitions. The Speaker must decide disqualification petitions within a reasonable period," the bench said.

"An MLA has the right to participate in the proceedings of the House 
regardless of the pendency of any petitions for their disqualification," the bench also said, adding the 
validity of the proceedings of the House in the interregnum is not subject to the outcome of the disqualification petitions;

Dealing with other issues, the bench held the Speaker and the Election Commission are empowered to concurrently adjudicate on the petitions before them under the Tenth Schedule and under Paragraph 15 of the Symbols Order respectively.

While adjudicating petitions under Paragraph 15 of the Symbols Order, the EC may apply a test that is best suited to the facts and circumstances of the case before it, the bench said.

It also said after the deletion of Paragraph 3 of the Tenth Schedule that the defence of split in a political party is no longer available to members facing disqualification 
proceedings.

"The Speaker would prima facie determine who the political
party is for the purpose of adjudicating disqualification petitions under Paragraph 2(1) of the Tenth Schedule, where two or more factions claim to be that political party," the bench said.

[Read Judgment]