A series of observations made by the Supreme Court towards the fag end of the Uddhav Thackeray-Eknath Shinde dispute over the “real’ Shiv Sena signalled the judges’ skepticism about the incumbent Maharashtra Chief Minister’s route to power.
For one, Chief Justice of India D.Y. Chandrachud, heading the Bench, had observed how the 39 rebel Shiv Sena legislators who made up the Shinde camp would have been disqualified under the Tenth Schedule (anti-defection law) of the Constitution had the Supreme Court not stayed the hand of then Deputy Speaker Narhari Zirwal in an interim order on June 27, 2022.
The Bench had wondered whether its 2016 judgment in the Nabam Rebia case was more of “a caution than an absolute principle”. The Rebia judgment had held that a Speaker who was himself under a cloud should not hear and decide disqualification petitions of legislators under the anti-defection law until his own name was cleared.
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“It is a caution to the Speaker and ultimately it is for the Speaker to take a call whether there is frontal assault on his continuance or whether he would like to go ahead with the hearing of the disqualification petition,” Chief Justice Chandrachud had observed.
Secondly, the Constitution Bench had wondered whether MLAs facing disqualification for causing a ‘split’ in the party, and unsettling the ruling government, could be allowed to benefit from a subsequent floor test.
Allowing an MP or an MLA who is facing disqualification under the anti-defection law to participate in a floor test caused by his own doings will defeat the very purpose of Tenth Schedule,” Chief Justice Chandrachud had observed.
“Allowing such MLAs to attend a trust vote would amount to legitimising a constitutional sin… One the one hand, you have the Tenth Schedule, which is to prevent the constitutional sin of defection. On the other, you say somebody who defects, causes a split within the party, is liable to be disqualified… At the same time, you say that even if that person is liable to be disqualified, in the meantime, he can participate in the trust vote in the House…” Chief Justice Chandrachud had asked senior advocate Neeraj Kishan Kaul, who appeared for the Shinde group.
Finally, the Bench had referred to then Maharashtra Governor Bhagat Singh Koshyari’s call for a trust vote on the floor of the House, which had eventually led to the fall of the Uddhav Thackeray government.
Can the Governor use his constitutional office to “precipitate” the fall of a legitimately established and functioning government, the court had asked Solicitor General Tushar Mehta, who appeared for the Governor’s office.
“A Governor must be aware of the fact that his very calling for a trust vote may precipitate the loss of majority for a government. Calling for a trust vote may itself lead to the toppling of a government… Governors must not lend their offices for effectuating a particular result… The Governor cannot enter into any area by which his action would precipitate the fall of a government,” Chief Justice of India D.Y. Chandrachud had observed.
