Thackeray group asks SC to overturn Koshyari's floor test order

The Supreme Court on Thursday reserved its verdict on a batch of cross-petitions of Uddhav Thackeray and CM Eknath Shinde factions pertaining to the Maharashtra political crisis.

A five-judge Constitution bench headed by Chief Justice DY Chandrachud reserved its verdict after hearing arguments advanced on behalf of both Uddhav and Eknath factions and the office of the governor.

The Thackeray faction of the Shiv Sena made an impassioned plea before the bench on Thursday for setting aside then Maharashtra governor B S Koshyari's June 2022 order to Chief Minister Uddhav Thackeray to take a floor test, asserting democracy will be in danger if it is not overturned.

Senior lawyer Kapil Sibal, representing the Thackeray bloc, urged the five-judge Constitution bench to rescind the order, a day after the apex court  questioned Koshyari's conduct in calling for a trust vote merely on the ground of differences between Shiv Sena MLAs.

It had said on Wednesday such action by the governor can topple an elected government and that the governor of a state cannot lend his office to effectuate a particular result.

Concluding his rejoinder arguments, Sibal told the bench, also comprising Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha, it's a moment in the history of this court when the future of democracy will be determined.

"I am absolutely certain that without the intervention of this court our democracy will be in danger because no elected government will be allowed to survive. It is with this hope I make this plea to this court to allow this petition and set aside the order (of floor test) of the governor," Sibal said.

The apex court was hearing arguments on the events that unfolded during the June 2022 political crisis triggered by a revolt in the then undivided Shiv Sena by MLAs loyal to Eknath Shinde.

Sibal said if the Sena MLAs had lost their faith in the government, they could have voted against it in the House when a money bill was moved and reduced it to minority.

His argument was in line with the views expressed by the bench on Wednesday when it 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 had said.

"It is not that the government cannot run in minority. Former Prime Minister PV Narasimha Rao ran a minority government. There is no scope for the governor to recognise those (rebel) MLAs and call for the floor test. Here, what they want is to topple the government and become chief minister and deputy CMs and use the position of governor for that. I don't want to say more, everything is in the public domain," Sibal said.

"I have my political experience and lordships have their judicial experience, which is enough to understand this. I can say we have reduced ourselves to a level that we are mocked. People don't believe us anymore," Sibal said, making a fervent pitch for setting aside the governor's order for a floor test.

Governors can only deal with alliances and political parties and not individuals, otherwise it will "create havoc", the senior lawyer asserted.

"The governor based his decision on the claim made by the legislative majority of Shiv Sena. On what constitutional basis can the governor recognise a faction, whether minority or majority, to hold a floor test?" he said.

He said there is no space for factions when the governor has to appoint a chief minister.

"Now, if all of Shiv Sena had gone to the Bharatiya Janata Party, would the  governor still have called for floor test. That's the 'Aaya Ram-Gaya Ram' principle which we gave up long ago. It's disastrous for  democracy -- the legislator has no identity other than being a representative of the political party," Sibal, who was assisted by lawyer Amit Anant Tiwari, said.

"When we enter this court we are in a different aura, we come with hope, expectations. If you look at the history of civilisations, all injustices are based on power. You (top court) are the hope of 1.4 billion people and you cannot let democracy be destabilised in this callous, uncouth fashion," he said.

During the hearing, Sibal also referred to Emergency imposed by Indira Gandhi.

"There have been occasions like the ADM Jabalpur (1976 verdict) which is in dissonance with what this court has done over years. This is an equally significant case for our democracy to survive," Sibal said.

The controversial 1976 judgment delivered by P N Bhagwati decreed during the emergency from 25 June 1975 to 21 March 1977, held that a person's right to not be unlawfully detained (ie, habeas corpus) can be suspended in the interest of the State.

The 5-judge bench concluded the hearing after senior advocates Kapil Sibal, AM Singhvi, Devadatt Kamat and advocate Amit Anand Tiwari made their submissions.

The top court also heard arguments of senior advocates Neeraj Kishan Kaul, Harish Salve, Mahesh Jethmalani and advocate Abhikalp Pratap Singh for Maharashtra CM Eknath Shinde-led faction.

Solicitor General Tushar Mehta represented the office of the governor in the matter.

The Constitution bench reserved its verdict after nine days of hearing which had commenced on February 21.

On February 17, the top court declined to refer a batch of pleas related to the June 2022 Maharashtra political crisis triggered by Shiv Sena's division to a seven-judge bench for reconsideration of the 2016 Nabam Rebia judgment.

The 2016 judgment dealt with powers of assembly speaker and ruled that he/she cannot proceed with pleas for disqualification of MLAs if a prior notice seeking the speaker's removal is pending before the house.

A political crisis had erupted in Maharashtra after an open revolt in the Shiv Sena, and on June 29, 2022, the apex court  refused to stay the Maharashtra governor's direction to the 31-month-old MVA government to take a floor test in the assembly to prove its majority.

Sensing impending defeat, Uddhav Thackeray had resigned, paving the way for Eknath Shinde to become the chief minister.

In another blow to the Thackeray bloc, the Election Commission declared the Shinde faction as the real Shiv Sena on February 17 and allotted to it the original bow and arrow election symbol of the party founded by Balasaheb Thackeray.

On August 23, 2022, a three-judge bench of the top court headed by then chief justice N V Ramana had formulated several questions of law and referred to the five-judge bench petitions filed by the two Sena factions which raised several constitutional questions related to defection, merger and disqualification.

On June 29, 2022, at the height of the Maharashtra political crisis, the apex court refused to stay the governor's direction to the 31-month-old MVA government led by Thackeray to take floor test.

Sensing defeat, Thackeray resigned, catapulting to power a Shiv Sena-BJP dispensation led by Shinde.

On August 23, 2022, a three-judge bench of the top court headed by then chief justice N V Ramana formulated several questions of law and referred to the five-judge bench petitions filed by the two Sena factions which raised several constitutional questions related to defection, merger and disqualification.

In a blow to the Thackeray bloc, the Election Commission last month declared the Shinde faction as the real Shiv Sena and allotted it the bow and arrow symbol of the party founded by Balasaheb Thackeray.