Discontent among MLAs not enough for governor to call trust vote, says SC

Calling for a trust vote merely on the ground of differences between MLAs of a ruling party can topple an elected government, the Supreme Court observed on Wednesday, adding that the governor of a state cannot lend his office to effectuate a particular result.

"It will be a sad spectacle for democracy," a five-judge Constitution bench headed by Chief Justice D Y Chandrachud said while taking forward the hearing on the events that unfolded during the June 2022 Maharashtra political crisis triggered by a revolt in the then undivided Shiv Sena by MLAs loyal to Eknath Shinde.

The bench made the observations after Solicitor General Tushar Mehta, appearing for the Maharashtra governor, narrated the sequence of events and said there were various materials before the governor including a letter signed by 34 Shiv Sena MLAs, a letter from Independent lawmakers withdrawing support to the Uddhav Thackeray government, and another of the Leader of the Opposition that prompted him to order a trust vote.

B S Koshyari, who was then the governor of Maharashtra, had asked Thackeray to face a floor test to prove his majority. Thackeray, however, resigned in the face of imminent defeat, paving the way for appointment of Shinde as the new chief minister.

"Difference of opinion among MLAs within a party can be on any ground like payment of development fund or deviation from party ethos but can that be a sufficient ground for the governor to call for the floor test? Governor cannot lend his office to effectuate a particular result. Calling for a trust vote will lead to toppling of elected government," the bench said.

The bench, also comprising Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha said a letter by the leader of opposition does not matter in the instant case because he will always keep on writing that the government has lost majority or MLAs are not happy. The letter from MLAs that there was a threat to their security is also not relevant in this case, it said.

"The only thing is that a resolution of 34 MLAs which said that there was widespread discontent among the party cadres and legislators.... Is this sufficient ground to call for trust vote? Although, in the hindsight we can say that Uddhav Thackeray had lost the mathematical equation.

"But the fact is governor cannot enter this domain which would precipitate the matter. People will start ditching the ruling party and governor will end up toppling the ruling party. This will be a sad spectacle for democracy," the court observed.

The bench also said the governor should have questioned the (Shiv Sena) MLAs that they were in a "happy marriage" with the Congress and the NCP for three years and then suddenly what happened in a day that they wanted to go out of the alliance.

"Three years you cohabited in an alliance, and one fine day you decided for divorce. The rebel MLAs became ministers in another dispensation. Governor has to ask these questions to himself. What were you fellows doing for such a long time and now suddenly you want a divorce," the court said. 

Mehta said the governor is not determining whether Uddhav Thackeray has lost confidence or not but he has just asked him to face a floor test to prove his majority based on the materials before him.

CJI Chandrachud said the content of the letter of the governor asking Thackeray to face the floor test is clear enough to show he is already confident that Thackeray has lost confidence inside the house.

"How can that inference be drawn by the governor? Can the governor be oblivious of the fact that the government has been running for the past three years and two of the three parties in alliance are rock solid? Congress and Nationalist Congress Party (NCP) remained a solid bloc throughout. It is only in the Shiv Sena where there was disruption and dissension.

"Shiv Sena was not a side-kick but one of the equally important parts of the coalition. Can this dissension in one party of the alliance be good enough to ask the chief minister to face the floor test. This is our concern and it is very dangerous for democracy," he said.

The bench, which clarified it is only on the issue of the powers of the governor, said he had to take into account that 34 MLAs were part of the Shiv Sena, irrespective of what their internal issue is, and he cannot say that the letter given by these 34 is a ground for shaking the faith of the government.

"The letter of 34 MLAs to the governor cannot be construed that they have withdrawn the support. Now, if 34 MLAs are part of the Shiv Sena, what is the cogent material before the governor that calls for the floor test. Governors have to exercise their powers with the greatest circumspection," CJI Chandrachud said.

Mehta referred to the 1994 nine-judge Constitution bench's SR Bommai case verdict and said it is a settled law that the governor cannot be a mute spectator and he has to act taking into account the entire conspectus including the media reports.

CJI Chandrachud then said suppose a group of MLAs feels  their leader has deviated from the party ethos and discipline, then they can always ask for a change of leadership within the party forum, but in this scenario where is the room for the governor to make an opinion based on the dissension to call for the floor test.

"Governors acting like this may actually precipitate the fall of the government. That could be very dangerous for our democracy. This is irrespective of the numbers. It is clear that they (Uddhav faction) had lost the numbers. All this hyperbole has happened in Maharashtra, which is a very highly cultured and developed state. I mean, things are said in politics but sometimes things are said which are inappropriate...they should have never been said," he added.

The bench referred to the statements about alleged threats being received by Shiv Sena MLAs loyal to Shinde and expressed its concern over the level of constitutional discourse and dialogue which has been prevailing in the country. The court recalled in one of the recent orders it has said it is a "race to the bottom".

Mehta said the governor's primary responsibility is to see to it that a stable government continues in the state and democratically elected leaders should continue to enjoy the confidence of the house throughout his tenure or otherwise there will be no accountability.

The bench recalled the monsoon session of the assembly was about to commence at the relevant time. The surest way to test its majority would have been when the government placed the supplementary demands before the House. If it had failed to get the money bill passed, it would have been out, it said.

Senior advocate Kapil Sibal, appearing for the Thackeray faction, in his rejoinder submission said, "We are back to a position of "Aaya Ram-Gaya Ram”. Why? Because you say now your political affiliation does not matter, what matters is numbers. Democracy is not about numbers. What the speakers, governors recognise is the political party and they are members of the political party. There is nothing less and nothing more." 

The hearing remained inconclusive and will continue on Thursday.