The Supreme Court, in a unanimous judgment, effectively opened the doors for the disqualification of Maharashtra Chief Minister Eknath Shinde for defection from the Shiv Sena party while holding that the then Governor Bhagat Singh Koshiyari’s call for trust vote, which led to the resignation of the Uddhav Thackeray-led Maha Vikas Aghadi government, was illegal.

A Constitution Bench led by Chief Justice of India DY Chandrachud, however, said it cannot quash the resignation of Thackeray, and thus, would not be able to reinstate him as the Chief Minister of Maharashtra, now.

“Thackeray did not face the floor test. Instead, he had resigned. If Thackeray had refrained from resignation, he could have been reinstated. Since the trust vote was not held due to his resignation, this option does not arise. We cannot quash a resignation,” the court held.

On June 29 last year, Thackeray resigned as the Chief Minister and the Maha Vikas Aghadi (MVA) government fell hours after the apex court refused to stay a floor test called for by Maharashtra Governor Bhagat Singh Koshyari on June 30. Following this, the Governor Koshyari had invited Shinde to form the new government.

The judgment, authored by the Chief Justice Chandrachud, held that the Election Commission of India’s decision to recognise the Shinde faction as the “real” Shiv Sena, giving it the party symbol of ‘bow and arrow’, did not have a “retrospective” effect and amounted to an interference with the party’s 2018 Constitution and results of the intra-party polls, following which Thackeray was made a leader.

The court said Maharashtra Assembly Speaker Rahul Narwekar should not have kept the disqualification petitions against Shinde and other MLAs of his camp pending until the Election Commission gave its decision in its favour. The then Deputy Speaker Narhari Zariwal had issued disqualification notices against 39 MLAs, including Shinde, for defection on June 25, 2022.

The court said Shinde did not have the defence of ‘split’ available to him. A “split” from the original political party without a subsequent merger with another party or formation of a new faction is no longer a defence against charges of defection. The Constitution (Ninety-first Amendment) Act, 2003 had deleted the provision of “split” in Paragraph 3 of the Tenth Schedule. The judgment backs the contention raised by the Thackeray faction that the Shinde camp’s refusal to comply with the party whip amounted to a “split” from the original Shiv Sena party. As a result, they had ceased to be party members and were liable to be disqualified as legislators for defection.

Though the Shinde government would continue for the time being, the Supreme Court judgment would gravely impact the Chief Minister’s sole defence that he had only “split” and not defected from the Shiv Sena party. The Constitution Bench also found the appointment of Bharat Gogawale as the new chief whip of Shiv Sena.

The judgment made scathing remarks against Governor Koshiyari, saying he roamed out of the constitutional bounds of his office into the political arena by calling for a trust vote without any “objective material” to support his “inference” that the MVA government had lost the majority and confidence in the House.

Chief Justice Chandrachud said there was nothing in the communications sent by the rebel Shiv Sena MLAs to him that they were withdrawing support to the Thackeray government. In fact, many of them were Ministers in that regime.

“Floor test cannot be used as a means to settle differences within a political party… The Governor erred in concluding that Thackeray had lost support,” Chief Justice Chandrachud lashed out at the Governor.

The court said if the MLAs were unhappy about the “corruption” in the government, either they or then Opposition leader Devendra Fadnavis could have sought a no-confidence motion in the House, which they had not, instead of writing to the Governor. “There is a marked difference between individuals withdrawing from a government and a party withdrawing from the government,” Chief Justice Chandrachud noted.

The court further referred to a larger Bench of seven judges the question whether a Speaker under a cloud can proceed with hearing and deciding disqualification petitions against MLAs. A Constitution Bench judgment in 2016 in the Nabam Rebia case had held that a Speaker who is himself facing notice of disqualification should stop from hearing petitions under the Tenth Schedule. Shinde had countered Zariwal’s disqualification notice by filing a notice of disqualification against the Deputy Speaker. Thackeray had contended that the 2016 judgment opened a constitutional hiatus by which the Speaker cannot use his powers to disqualify MLAs, thus rendering the Tenth Schedule redundant.

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