Maharashtra political crisis: Proceedings under the Tenth Schedule operate independently of the power of governor, argues Shinde camp

Earlier in the day, the petitioners' side had argued for the restitution of the status quo prior to the call for floor test by the then Maharashtra governor in June.

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ON Tuesday, the Constitution bench of the Supreme Court continued hearing a batch of petitions filed related to the Maharashtra political crisis. In the last hearing, the bench was deliberating on the question of the extent to which the governor can exercise discretion and power to invite a person to form a government, and whether their decision is amenable to judicial review.

Recap

Senior advocate Kapil Sibal, for the Shiv Sena faction led by former chief minister and former party president before its split, Uddhav B. Thackeray, had argued that the governor cannot invite persons to form a government on its own. It is the legislators that have to first move a no-confidence motion and the governor is supposed to maintain the status quo till the motion has been moved.

To recapitulate, this was one of the questions put before the five-judge Constitution bench of Chief Justice of India (CJI) Dr. D.Y. Chandrachud, and Justices Hima Kohli, M.R. Shah, Krishna Murari and P.S. Narasimha, as framed by a three-judge bench of the court in an order in August 2022. That bench, while formulating these issues, stated that they need to be referred to a five-judge bench as the matter required the interpretation of the Tenth Schedule of the Constitution and considering the correctness of the judgment of a five-judge Constitution bench of the Supreme Court in Nabam Rebia & Bamang Felix versus Deputy Speaker & Ors. (2016). In this judgment, it had been held that the speaker, whilst under the cloud of removal, cannot decide on disqualification petitions against legislators under the Tenth Schedule.

The CJI-led Constitution bench had heard preliminary submissions last month, but ultimately decided to hear the case on merits.

Petitioners: Governor's actions outside scope of authority

In yesterday's hearing, senior advocate Dr. Abhishek Manu Singhvi, for the Thackeray faction, continued to argue on the issue of the governor's discretion. Dr. Singhvi pointed out that the governor could not have interfered and asked for a floor test when the matter of disqualification was sub-judice on two levels — before the Supreme Court and before the Deputy Speaker Narhari S. Zirwal. As the deputy speaker had issued notices for disqualification, a non-confidence motion was passed against him, which he ultimately rejected on the grounds of lack of authenticity of the signatures and the source.

Moreover, Dr. Singhvi reiterated the argument made by Sibal during the last hearing that the governor, by his actions, recognised the political split, which is prohibited under the Tenth Schedule. Initially, Paragraph 3 of the Tenth Schedule protected legislators from disqualification, when 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. However, it was deleted by the Constitution (Ninety First Amendment) Act, 2003, as the provision came under severe criticism on account of its destabilising effect on a government.

Dr. Singhvi submitted that even the Supreme Court recognising a political split in the exercise of its power of complete justice would be constitutionally wrong in doing so. So, the governor, who is an executive appointee, has no role to play in a legislative issue.

Dr. Singhvi referred to the letter written by then Governor Bhagat Singh Koshyari to the Maharashtra legislative assembly secretary in which he had mentioned that there is discontent within the Shiv Sena legislature party and that certain legislators wanted to exit the then Maha Vikas Aghadi government (comprising the Shiv Sena, the Nationalist Congress Party and the Indian National Congress).

It was specifically pointed out by Dr. Singhvi that the governor had mentioned that the Thackeray-led Shiv Sena had lost the majority in the House, and questioned on what basis the governor is constitutionally allowed to make that statement. The consequences of this letter, Dr. Singhvi pointed out, are that the governor implicitly recognised that the legislators against whom the disqualification notices were issued are not disqualified, that there was a political split in the Shiv Sena, and the real Shiv Sena was the one led by the current Chief Minister Eknath S. Shinde.

It should be noted that the Election Commission of India (ECI), through its February 17 order, recognised the Shinde-led faction as the real Shiv Sena and allowed it to retain the bow and arrow symbol reserved under the Symbols (Reservation and Allotment) Order, 1968, by applying the test of legislative majority laid down by the Supreme Court in Sadiq Ali versus Election Commission of India (1971).

A petition was filed by Thackeray before the Supreme Court challenging the ECI order on the basis that it has a direct bearing on the matter currently pending before the court. However, the court refused to stay the ECI order.

Dr. Singhvi suggested that the court quash the letter of the governor to restore the status quo. He referred to the observations made by the Supreme Court in Indore Development Authority versus Manoharlal & Ors. (2020) on restitution.

He referred to a paragraph of the judgment which reads: "The principle of restitution is founded on the ideal of doing complete justice at the end of litigation, and parties have to be placed in the same position but for the litigation and interim order, if any, passed in the matter…Section 144 of the Code of Civil Procedure is not the fountain source of restitution. It is rather a statutory recognition of the rule of justice, equity and fair play. The court has inherent jurisdiction to order restitution so as to do complete justice. This is also on the principle that a wrong order should not be perpetuated by keeping it alive and respecting it."

It further says: "What attracts applicability of restitution is not the act of the court being wrongful or mistake or an error committed by the court; the test is whether, on account of an act of the party persuading the court to pass an order held at the end as not sustainable, resulting in one party gaining an advantage which it would not have otherwise earned, or the other party having suffered an impoverishment, restitution has to be made. Litigation cannot be permitted to be a productive industry. Litigation cannot be reduced to gaming where there is an element of chance in every case."

As Dr. Singhvi made his arguments, the CJI asked him to address the power of the governor to call for a trust vote post the formation of the government. Dr. Singhvi answered that the governor has no power to call for a trust vote when disqualification petitions are pending before the speaker. The governor can only act on the consequences of the Tenth Schedule proceedings and not before that, he averred.

Respondents: Governor's call for floor test justified

Senior advocate Neeraj Kishan Kaul, for the Shinde camp, countered the arguments of the petitioners by stating that they are in the teeth of the nine-judge Constitution bench judgment of the Supreme Court in S.R. Bommai & Ors versus Union of India & Ors (1994). Specifically addressing the issue of the governor's power to hold a floor test, he also referred to the Supreme Court's judgment in Shivraj Singh Chouhan versus Speaker, Madhya Pradesh (2020). In this, the court observed that convening a floor test is the surest method of assessing the impact of the resignation of legislators in an expression of a lack of faith in the existing government, on the collective will of the house.

Kaul stated that S.R. Bommai was referred to point out that a floor test does not have to be necessarily held when a ministry has not been formed. He also argued that there has been an assumption that there is a split in the legislature party. He pointed out that the legislature party is an integral part of the political party.

Further, Kaul's core argument was that the proceedings under the Tenth Schedule operate independent of the powers of the governor. The bench asked if there is any limitation on the exercise of this power when disqualification proceedings against legislators are pending. Kaul replied that since the court has already held that legislators against whom disqualification is pending are allowed to participate in the house proceedings and vote, then a floor test can definitely be conducted.

The court will continue hearing the matter today.