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Mumbai: The political interpretation of the landmark judgement of the Supreme Court of India of Thursday in the power struggle of Maharashtra is that while former chief minister Uddhav Thackeray erred in tendering his resignation in haste without facing the floor test. The Chief Minister Eknath Shinde faction, though, has won on technical ground as the apex court upheld the action of then Maharashtra Governor Bhagat Singh Koshyari in inviting Shinde to form the government, thus earning a temporary reprieve for his government.
Stating that it could not restore status quo ante as Thackeray had resigned before facing the floor test, in short, Thackeray erred in tendering his resignation on moral grounds. It is a fact that was underscored by Nationalist Congress Party (NCP) patriarch and chief architect of the Maha Vikas Aghadi (MVA), Sharad Pawar who had opined that Thackeray ought not to have tendered his resignation and faced the floor test thereby making the position of the rebel Sena MLAs piquant when it came to voting on the trust vote, as they could not have defied the party whip.
Furthermore, the 16 rebel Shiv Sena MLAs headed by Chief Minister Eknath Shinde are not entirely out of the woods as yet as the matter of their petitions of disqualification is now referred to the Speaker of the Legislative Assembly who has to adjudicate on them within a reasonable amount of time.
Delivering a landmark unanimous judgement by the five judges constitution bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud came down heavily on the role of the then Maharashtra Governor Bhagat Singh Koshyari and incumbent Legislative Assembly Speaker Rahul Narvekar in deciding on matters of floor test and recognising the party whip Bharat Gogawale of rival faction headed by Chief Minister Eknath Shinde.
Passing a series of strictures on the role of the then Maharashtra Governor B S Koshyari, the SC constitutional bench headed by the CJI observed that the Governor did not have objective material before him to decide on whether then chief minister Uddhav Thackeray had lost the confidence of the house.
Citing the resignation of Thackeray before facing the floor test, the bench observed, “However, the status quo ante cannot be restored because Mr Thackeray did not face the floor test and tendered his resignation and The Governor was justified in inviting Mr Shinde to form the government.”
Restraining itself on adjudicating on the petitions for disqualification of the 16 Members of Legislative Assembly (MLAs) of the Eknath Shinde faction, the constitutional bench ruled, “The Speaker must decide disqualification petitions within a reasonable period.”
However, the judgement is silent on one crucial aspect in respect of the adjudication of the disqualification petitions by the Speaker. During the drama of power struggle that unfolded in June-July 2022, Deputy Speaker Narhari Zirwal was conducting the proceedings of the house as the post of the Speaker was lying vacant.
The Deputy Speaker acting on the whip issued by the Uddhav Balasaheb Thackeray (UBT) faction had served disqualification notices to the 16 rebel Sena MLAs led by Shinde. But since a No Confidence motion was moved against Zirwal there is a legal bar on him adjudicating on such disqualification petitions.
There is no clarity on the issue of whether or not the Deputy Speaker is empowered to still decide on the disqualification petitions even as the members have expressed their lack of trust in him. The judgement is silent on who between incumbent Speaker Rahul Narvekar or Deputy Speaker Narhari Zirwal are to decide upon the disqualification petitions, recognising the party whip and who is the leader of the Shiv Sena political party as per the provisions of the party constitution.
It may be recalled that the ECI in its order of February 17 earlier this year had pointed out that it had turned down the amendment to the constitution of the Shiv Sena party made in 2018 that made Uddhav Thackeray as the party president appointed by an executive council that is hand-picked.
The apex court has upheld the contention of the Thackeray faction in referring its 2016 judgement in the Nabam Rebia versus Deputy Speaker case (Arunachal Pradesh) to a larger 7 judge’s bench of the apex court. The Nabam Rebia case pertains to whether the Deputy Speaker is authorised to decide on disqualification petitions while a no trust motion is pending against him.
Giving a major relief to Chief Minister Eknath Shinde and his embattled group of 16 rebel MLAs, the apex court ruled that they can take part in the proceedings of the house regardless of the pendency of any petitions for the disqualification. The validity of the proceedings of the House in the interregnum (interim period) is not ‘subject to’ the outcome of the disqualification petitions.
In yet another landmark observation, the constitutional bench has clearly made a distinction between the Political Party and the Legislative Wing of that party. In its judgement, the bench has ruled, “The political party and not the legislature party appoints the Whip and the Leader of the party in the House. Further, the direction to vote in a particular manner or to abstain from voting is issued by the political party and not the legislature party.”
The ruling clearly sets aside the party whip issued by the legislature wing of the party.
The ruling is a body blow to the Shinde faction as its move to appoint Bharat Gogawale as the Shiv Sena party whip replacing Ajay Chaudhari as illegal. In effect the party whip issued by Chaudhari is termed as valid. However, the SC thereafter in an interim order earlier had extended the two days deadline issued to the rebel Sena MLAs.
However, the apex court in its ruling has stated that “The Speaker and the ECI (Election Commission of India) are empowered to concurrently adjudicate on the petitions before them under the Tenth Schedule and under Paragraph 15 of the Symbols Order respectively.”
The ruling further notes that the ECI “while adjudicating the petitions under Paragraph 15 of the Symbols Order, the ECI may apply a test that is best suited to the fact and circumstances of the case before it.”
It may be recalled that the ECI in its final order on the Shiv Sena dispute on February 17 earlier this year had awarded the party name Shiv Sena and the party symbol ‘Bow and Arrow’ to the Shinde faction based on the test of majority of MLAs and Members of Parliament (MPs) supporting it.
Technically on legal issues, Thackeray appears to have erred in his decision in stepping down as the chief minister taking the moral high ground forsaking the government, wasting the opportunity to corner Shinde legally. Chief Minister Eknath Shinde has earned a temporary reprieve, pending the decision of the disqualification petition.
The judgement of the constitutional bench was due today as the five judges bench headed by CJI D Y Chandrachud, justice M R Shah, justice Krishna Murari, justice Hima Kohli and justice Pamidighantam Sri Narsimha, as justice M R Shah is due to retire on May 15 and the SC takes a summer vacation.
Given the lack of clarity over the Speakers issue and the ECI order in recognition of the Shinde faction, the legal battle over the power struggle is far from over. Notwithstanding the ruling of the Speaker in the disqualification petition matter.
