Why Uddhav Thackeray's Resignation BEFORE The Floor Test Could Be The 'Fatal Flaw' In His Case

A five-judge Constitution bench of the Supreme Court consisting of the CJI D Y Chandrachud and Justices Krishna Murari, MR Shah, Hima Kohli and PS Narsimha has reserved its verdict in the Shiv Sena matter yesterday (16 March), after consecutively hearing the matter for nine days.

The most notable part of the hearing on 16 March was when the Supreme Court wondered as to how it can reinstate the Uddhav Thackeray government in Maharashtra, when the chief minister (CM) had put in his papers even before facing the floor test.

The Uddhav faction had pleaded for the apex court to set aside the governor's June 2022 order to the chief minister to take a floor test.

The Thackeray faction made vehement submissions before the court urging it to turn back the clock and restore the 'status quo ante' (previously existing state of affairs) as it had done in 2016 when it reinstalled Nabam Tuki as the chief minister of Arunachal Pradesh.

Senior lawyer Kapil Sibal, representing the Thackeray bloc, urged a five-judge Constitution bench headed by Chief Justice D Y Chandrachud to rescind the Governor's order for a floor test, a day after the apex court questioned his conduct in calling for a trust vote merely on the grounds of 'differences between Shiv Sena MLAs'.

The bench took note of the submissions of senior advocate AM Singhvi, also appearing for Uddhav Thackeray, and observed:

'So, according to you, we do what? Reinstate you? But you resigned. That’s like the court being asked to reinstate a government which has resigned before the floor test.'

The bench, also asked Singhvi, “How can the court reinstate the chief minister who did not even face the floor test?”

While a battery of eminent lawyers including Sibal, Singhvi, Devadutt Kamat and Amit Anand Tiwari appeared for the Thackeray group, senior advocates N K Kaul, Mahesh Jethmalani and Maninder Singh represented the Shinde faction.

During the day-long hearing, Singhvi referred to the sequence of events before the Thackeray government resigned and said, 'My resignation is irrelevant. Your lordships are not reinstating anyone but restoring the status quo ante.'

He referred to the 2016 Nabam Rebia judgement by which the top court had turned the political clock back in Arunachal Pradesh by reinstalling Tuki as the chief minister of the state and unseated the BJP supported Kalikho Pul government.

Singhvi said, 'The resignation of the ex-CM on 29 June, 2022 would be irrelevant… as once the illegal act of the governor is allowed to be implemented, the result of the trust vote was a known and foregone conclusion, and factually there was no need for the ex-CM to subject himself to it.'

He submitted the crux of the issue raised by Thackeray remains that the direction to hold the trust vote was an 'illegal act' because the Governor did so by recognising a faction of 34 legislators.

'The ex-CM's participation or absence of participation would not dilute that fundamental and basic illegality in any manner,' he said.

However, the CJI told Singhvi, 'No, but status quo ante would have been a logical thing to do provided that you had lost the trust vote on the floor of the house. Because, then clearly you have been ousted from power based on the trust vote, which could be set aside. Look at the intellectual conundrum….You chose not to face the trust vote.'

The conundrum which the CJI referred to here can be summarised thus:

• If the court reinstates Thackeray as the CM it would mean reinstalling as CM a person who himself appeared to believe that he had lost the majority of the House.

• Had he faced the floor test and lost it, the Thackeray faction could still argue that Uddhav's loss was engineered through illegal and unconstitutional means, and setting aside the floor test would imply Thackeray's reinstatement.

• In the current case, where there was no floor test, how can the judiciary reinstall a CM who resigned of his own accord?

However, terming the development a 'red herring', Singhvi said that prior to the governor ordering the floor test, the matter was sub-judice in the top court.

'So, you are saying that Thackeray resigned only because he was called upon by the governor to face the floor test?' the court asked.

Singhvi replied in the affirmative and said as the matter was sub-judice, the subsequent direction of the governor for the floor test should not have been allowed.

'You are frankly accepting the fact that you resigned because the trust vote would have gone against you,' the CJI quipped.

Sibal, representing the Thackeray bloc, urged the bench to rescind the order, a day after the apex court said 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.

Sibal said if 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.

'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.

On 23 August 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.

(With inputs from PTI).