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Maha political row: Governor not empowered to enter political arena & play role in inter-party or intra-party disputes, says SC

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New Delhi: The governor of a state is not empowered to enter the political arena and play a role in inter-party or intra-party disputes, the Supreme Court said on Thursday, holding that the discretion exercised by then Maharashtra Governor Bhagat Singh Koshyari asking Chief Minister Uddhav Thackeray to face a floor test was “not in accordance with law”.

However, the five-judge constitution bench headed by Chief Justice D Y Chandrachud held that the governor’s June 30, 2022  decision inviting Eknath Shinde to form a new government was justified since Thackeray had resigned without a trial of strength.

In a unanimous verdict on a batch of pleas related to the political crisis that led to the fall of the three-party Maha Vikas Aghadi (MVA) government led by Thackeray following a revolt by the Shinde faction in the Shiv Sena, the apex court said the governor had “no objective material” on the basis of which he could doubt that the incumbent dispensation had lost confidence of the House.

It said the Constitution empowers elected representatives to act on behalf of the people and, consequently, the governor, who despite his constitutional status is unelected, is vested with limited discretionary powers.

The bench, also comprising Justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha, said the power of the governor to act without the aid and advice of the Council of Ministers is of an “extraordinary nature” and exercise of such power has ramifications for parliamentary democracy.

“The Governor is the titular head of the State Government. He is a constitutional functionary who derives his authority from the Constitution. This being the case, the Governor must be cognizant of the constitutional bounds of the power vested in him. He cannot exercise a power that is not conferred on him by the Constitution or a law made under it,” it said.

“Neither the Constitution nor the laws enacted by Parliament provide for a mechanism by which disputes amongst members of a particular political party can be settled. They certainly do not empower the Governor to enter the political arena and play a role (however minute) either in inter-party disputes or in intra-party disputes,” the bench said in its 141-page verdict.

It said discretion to call for a floor test is not an “unfettered discretion” but one that must be exercised with circumspection, in accordance with the limits placed on it by law.

“There must be some objective material in addition to a mere request to call for a floor test. In the present case, the Governor did not have any objective material before him to indicate that the incumbent government had lost the confidence of the House and that he should call for a floor test. Hence, the exercise of discretion by the Governor in this case was not in accordance with law,” the bench noted.

It also dealt with the submissions raised by the Thackeray faction which had challenged the exercise of discretion by the governor in inviting Shinde to form the government.

Referring to Article 164(1B) of the Constitution, the bench noted that it bars an MLA or a Member of the Legislative Council of a State (where one exists) from being appointed as a minister if they have been disqualified under Paragraph 2 of the Tenth Schedule.

“In other words, the mere institution of a disqualification petition does not trigger some or all of the consequences which flow from the disqualification itself. To hold otherwise would be to blur or efface the distinction between the institution of a disqualification petition against a member of the House and the disqualification of that member,” it said.

The bench said a claim that something is true does not mean that it is actually true and the claim must be established according to the procedure established by law before it can be considered to be a fact.

“Article 164(1B) is therefore triggered only when the Speaker returns a verdict finding that the member of the House in question has breached Paragraph 2 of the Tenth Schedule. If the Speaker finds that Shinde is disqualified, he will no longer be eligible to hold the post of Chief Minister for the duration specified in Article 164(1B),” it said.

The bench noted that in the 288-member Assembly, the Bharatiya Janata Party (BJP) emerged as the single largest party, and by a letter of June 30, 2022, the then Leader of Opposition, Devendra Fadnavis, wrote to the Governor claiming that 106 MLAs of the BJP extend their support to Shinde for formation of a government.

It also noted that some independent candidates too extended their support to a government helmed by Shinde, and on the same day, Shinde wrote to the governor seeking to be called to form the government.

The bench said based on the material before him, that is the communications received, the governor invited Shinde to take the oath of office and directed him to prove his majority on the floor of the House within seven days.

“The post of the Chief Minister of the State of Maharashtra fell vacant after the resignation of Thackeray on June 29, 2022. The leader of the party that had returned the highest number of candidates to the State Assembly extended support on behalf of the party to Shinde. Thus, the decision of the Governor dated June 30, 2022 inviting Shinde to form the Government was justified,” the bench said.

It said the governor had relied on the letters written by Fadnavis and seven Independent MLAs calling upon him to direct Thackeray to prove his majority on the floor of the House.

“First, both Fadnavis as well as the seven MLAs could have well moved a motion of no-confidence. Nothing prevented them from doing so. Second, a request by some MLAs for a direction to the Chief Minister to prove his majority does not, taken alone, amount to a relevant and germane reason to call for a floor test,” the bench said.

“The Governor was not justified in calling upon Thackeray to prove his majority on the floor of the House because he did not have reasons based on objective material before him, to reach the conclusion that Thackeray had lost the confidence of the House,” it said.

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