A Constitution bench of the Supreme Court heard arguments questioning the discretionary power of a Governor to administer a floor test in the Legislative Assembly.
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THE hearing on merits of the matter related to the Maharashtra political crisis entered its third day at the Supreme Court, with the court now hearing arguments on the role of the Governor, from among the eleven issues framed by the Supreme Court's three-judge bench in its August 2022 order.
The court had then referred the matter to a five-judge Constitution bench to decide on questions concerning the constitutional interpretation of the Tenth Schedule of the Constitution, including the correctness of the Supreme Court's judgment in Nabam Rebia & Bamang Felix versus Deputy Speaker & Ors. (2016) which held that the Speaker, whilst under the cloud of removal, cannot decide on disqualification petitions against legislators under the Tenth Schedule.
After having heard preliminary submissions last week, the Constitution bench, led by Chief Justice of India (CJI) Dr. D.Y. Chandrachud, and comprising Justices Hima Kohli, M.R. Shah, Krishna Murari and P.S. Narasimha, had decided to hear the issues on over merits.
The issue relating to the Governor was formulated by the three-judge bench headed by former CJI N.V. Ramana as: "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?"
At the outset, senior advocate Kapil Sibal, for the Shiv Sena faction led by former Chief Minister and former party president before its split, Uddhav B. Thackeray, told the court that then Maharashtra Governor Bhagat Singh Koshyari, by his actions, recognised a split in the political party. Paragraph 3 of the Tenth Schedule, which protected legislators from disqualification, where such members of the legislature party constituted a group which had arisen as a result of a split of the original political party, and such group consisted of not less than one-third of the members of such legislature party, was deleted by the Constitution (Ninety First Amendment) Act, 2003.
Further, Sibal questioned the action of the Governor to order a floor test in the Maharashtra Vidhan Sabha after a request for the same was made by the leader of the breakaway faction of the Shiv Sena, current Chief Minister and current Chairperson of Shiv Sena, Eknath S. Shinde, and then Leader of Opposition and current Deputy Chief Minister, the Bharatiya Janata Party's Devendra G. Fadnavis. This happened when disqualification petitions against 39 legislators from the Shinde faction was pending before the Deputy Speaker of the Vidhan Sabha.
By ordering a floor test, the Governor implicitly decided that those rebel legislators had not voluntarily given up their membership of the House under Paragraph 2(1)(a) of the Tenth Schedule on the grounds of defection, Sibal pointed out.
Sibal referred to paragraph 192 of Nabam Rebia, wherein the Supreme Court had observed: "Admittedly, the Governor never called for a floor test, nor did he ever require the Chief Minister to establish his majority in the House. The Governor's actions, based on feuds and wrangles of a breakaway group, which is not recognized under the Tenth Schedule, cannot be constitutionally condescended." Placing reliance on this, he submitted that there is no constitutional foundation to the act of Koshyari.
In Nabam Rebia, the action of the Governor was struck down and the court ordered the status quo to be restored. In that case, the Governor acted beyond his constitutional capacity when he moved the Arunachal Assembly session earlier in time and listed the removal of the Speaker on the legislative agenda. This happened when 21 legislators of the Indian National Congress had rebelled against then Chief Minister Nabam Tuki of Congress and their disqualification petitions were pending before the Speaker.
The rift between the Thackeray and Shinde factions has become more complicated after the Election Commission of India (ECI) last week allowed the latter to retain the Shiv Sena's original bow and arrow symbol for elections and thereby, officially recognise it as the Shiv Sena party, on the basis of the test of legislative majority. This was challenged through a writ petition by the Thackeray faction. However, a three-judge bench of the Supreme Court, led by the CJI, refused to stay the ECI's order, although it issued notice to the Shinde camp.
Meanwhile, Thackeray continues to use a flaming torch party symbol and the party name 'Shiv Sena (Uddhav Balasaheb Thackeray)' as per the interim arrangement made by the ECI.
Now that the question of the Governor recognising the split has surfaced, the same is linked with another framed issue relating to the impact of the removal of Paragraph 3 from the Tenth Schedule.
As per the statement of objects and reasons of the 91st Constitutional amendment, paragraph 3 was deleted as it came "under severe criticism on account of its destabilising effect on the Government". Interestingly, Thackeray's petition challenging the ECI order also avails of the same argument. According to the petition, the ECI's order, by allowing the Shinde faction to retain the official party name and symbol, recognised the political split. Whereas as per the Shinde camp's petition before the ECI, claims were only made in regard to a split in the legislative party.
The CJI asked Sibal if the Governor is constitutionally wrong to continue with the floor test, assuming that certain members have allegedly incurred disqualification and that the composition of the House has been altered. The context in which the CJI posed this question answers whether the Leader of the House continues to enjoy majority despite the disqualifications. Sibal answered that it has never happened in constitutional history that the Governor calls for a floor test when a government is in power.
At this stage, Justice Narasimha asked Sibal to clarify if he meant that it is impermissible for the Governor to take cognisance of any issue relating to the Tenth Schedule, including that the Chief Minister has to prove his strength in the House. To this, Sibal told the bench that the Governor has to verify if the sitting Chief Minister has lost majority and then communicate the same to the Chief Minister. The Governor may then be justified in calling for a floor test. But the Governor cannot take the decision on their own. To this, the CJI suggested that either the opposition party leaders or the defecting legislators can communicate to the Governor that the leader of the House has lost the majority. However, Sibal respectfully rejected this proposition and argued that the defecting legislators cannot do that.
Sibal's core argument was that the Governor must ensure the existing position of the House till the legislators move a non-confidence motion.
Further, Sibal questioned the Governor's act of administering oath to Shinde as the Chief Minister. Relying on the report of the Justice R.S. Sarkaria-led Commission on the role of the Governor, he submitted that when there is a situation where no political party has a majority in the House, the Governor has to select a Chief Minister, in the order of preference, from the alliance of parties that was formed prior to the elections, the largest single party staking a claim to form the government with the support of others, including independent legislators, a post-electoral coalition of parties with all the partners in the coalition joining the government, and a post-electoral alliance of parties, with some of the parties in alliance forming a government and the remaining parties, including independent legislators, supporting the government from outside.
According to Sibal, there has to be a party or alliance as a matter of law to stake a claim to form the government. This is exactly what Paragraph 4 of the Tenth Schedule, which exempts legislators from disqualification, suggests – that there must be a merger of a political party when two-third of the legislature party, that is the elected members of the House, agrees to such a merger. However, the decision of the merger can only be taken by the original political party.
The hearing will continue on February 28.