The Supreme Court on Tuesday asked the Eknath Shinde-led faction if its move to go against the Shiv Sena party's wish to continue with the coalition in the Maha Vikas Aghadi (MVA) amounted to indiscipline leading to disqualification.
Defending its stand, the Shinde faction said the legislative party is an integral part of the original political party and informed that there were two whips appointed by the party in June last year and it went with the one that said it did not want to continue in the coalition.
A five-judge bench headed by Chief Justice DY Chandrachud told senior advocate Neeraj Kishan Kaul, appearing for the Shinde faction, "If you don't want to go with the alliance, decide that outside the House (state assembly)."
"Inside the House you are bound by the party discipline. Your writing of letter to the governor that you don't want to continue with the MVA coalition, itself amounted to disqualification. The governor taking note of the letter actually re cognised the split in the party," it said.
Kaul assisted by advocate Abhikalp Pratap Singh said the governor is bound by the 1994 verdict of a nine-judge Constitution bench in the SR Bommai case, which was relied upon in the 2020 Shivraj Singh Chouhan case, that ultimately the test of majority has to be held on the floor of the House.
"The governor was bound by this court's verdicts and ordered for floor test. Else what is he supposed to do," he said.
The bench, also comprising justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha, asked Kaul to specify what was the relevant materials before the governor which made him ask for the floor test.
"The government was running. Can the governor ask the chief minister for the floor test? Had it been after the election, then it would have been another matter. When a government is formed, it's not open to any group to say that we cannot go with this alliance. You, specify what were the compelling reasons which made the governor to ask the then chief minister to prove his majority in the House? What prevented the governor asking you to move no confidence motion in the House," the top court said.
CJI Chandrachud asked why should a democratically elected government, which has been formed, be asked to face a floor test and does the governor by recognising the rival group not legitimise the defection, which is otherwise not permissible under the 10th Schedule.
"Yes, we agree that mere pendency of disqualification petition against MP/MLA does not preclude the lawmaker from taking part in the floor test. The SR Bommai case is a gospel for us. But the problem arises where the reason for the trust vote is so intrinsically connected with the disqualification proceedings," he said.
Kaul read from a letter written by the governor to then Maharashtra Chief Minister Uddhav Thackeray and said that there were three developments that the governor took note of.
These were "seven independents wrote to the governor that they were withdrawing support from the government, 34 MLAs of Shiv Sena wrote to the governor that there was widespread discontent among party cadre over Shiv Sena continuing in alliance with Congress and the NCP in the MVA and thirdly, Leader of Opposition Devendra Fadnavis had met the governor to inform him that government has lost its majority in the House," he said.
He said that a minority government cannot be allowed to continue and the only way to find out whether the government enjoys majority is the floor test.
Justice Narasimha then asked whether these independents were part of the government to which Kaul said that two of them were ministers and the rest supported the government.
"Your claim is that you are a political party. So where is the reference in the letter written to the governor that you are a majority in the political party and not only the majority in the legislative party," the judge said.
Kaul said, "It has never been our case that the Shinde bloc is only a legislative party and not a political party. Our case is that we were a rival faction within the original party with a dissent. Legislative party is an integral part of the political party and even the Election Commission recognises a political party when it has elected representatives."
"We passed a resolution, which was referred to by the governor in his letter, that there was widespread discontent among the Shiv Sena party cadre with the continuing alliance (MVA) with those parties against whom we had contested the election," he said.
The senior lawyer said that he would refer to the 10th Schedule further in his arguments, where a reference has been made to the legislative party and the original political party.
Earlier, in the day, senior advocate AM Singhvi appearing for the Uddhav faction said that with the things happening across the country it can be said that "governors are no more angels".
The hearing remained inconclusive and would continue on Wednesday.
On February 23, the Uddhav faction told the top court that the formation of a new government in Maharashtra under Eknath Shinde was the "direct and inevitable result" of two orders of the apex court that "disturbed the co-equal and mutual balance" between judicial and legislative organs of the State.
A political crisis had erupted in Maharashtra after an open revolt in the 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. Thackeray resigned as the chief minister before the floor test to avoid an impending defeat.
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.
