Referring to then Maharashtra governor B S Koshiyari’s decision to ask then chief minister Uddhav Thackeray to face a floor test on June 30 last year, at a time when Shiv Sena was imploding with rebellion, a bench of Chief Justice D Y Chandrachud and Justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha said the revolt was an internamatter of Shiv Sena and there was no material to suggest that Sena as a political party had withdrawn support to the Maha Vikas Aghadi (MVA) government formed in coalition with Congress and NCP — an observation that was refuted by the solicitor general, who represented the former governor.
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“The governor should have been conscious that by asking Thackeray to face a trust vote, it could precipitate toppling of the government. If the Sena MLAs were unhappy with their leader, they could have replaced the leader. But can the governor say because of dissension in the party, the CM must face a trust vote? We are not questioning the governor’s power to ask the CM to face a trust vote. But the problem is the governor should not be part of a process to precipitate the fall of a government. And this is irrespective of the number game inside the House,” the CJI said on behalf of the bench.
The bench said, “The only fact available before the governor was that the rebel MLAs were unhappy with the post-poll alliance with Congress and NCP. Can that be ground to call for a trust vote? It is virtually allowing the rebels to break the party and topple the government. It is obvious that Thackeray lost in the number game. But we are on the adequacy of the material to make the governor ask the CM to face a trust vote.”
SG Tushar Mehta sought to counter the bench’s observation that Koshiyari waded into the dissension when it would have had no implications for the stability of the MVA coalition. Mehta said that the 39 rebel MLAs’ letter to the governor clearly stated that they did not want to be part of the MVA government and that they wanted to withdraw support. “Is this not material enough to create a doubt in the mind of the governor about the government possibly not enjoying majority-support in the House?”
He said the rebel MLAs had also alleged they were facing threat to their lives from the Thackeray faction. “Should the governor not take this into account when threats were given from public platforms and the houses of the rebel MLAs were vandalised? Would the governor be wrong in harbouring a doubt that the MLAs were being coerced to support the MVA government, which prima facie appeared to have lost majority in the House?”
Mehta said it is possible that the judges, on seeing the material today, could take a different view. “But that does not erase a possible view that the MVA government could have lost majority and the best place to ascertain the number is in the House through a floor test, as has been reiterated in a series of rulings by the SC’s constitution benches over the last four decades. The governor followed the mandate of the Constitution that an elected government must not only enjoy but continue to enjoy during its lifetime the majority support in the House. The SC judgments mandated him to call for a floor test at the earliest whenever he had doubts, based on materials, about the majority support for the government,” he said.
The bench said, “It is a sad spectacle in our country that for a variety of reasons, MLAs ditch the parties on whose tickets they get elected. But can the governor allow his office to lend impetus to the process for toppling of elected governments? This is irrespective of the downward trend in political morality. In another recent case, we had said that there has to be a level in the political discourses in our country.”
The bench said if the rebels were the real Shiv Sena as they were claiming, they should have withdrawn from the coalition to topple the government. “How did the governor recognise them as a legitimate faction when the Sena-Congress-NCP coalition was intact? The rebel MLAs were part of the coalition for three years. What suddenly happened to spoil the political marriage?” the bench asked.
The arguments will continue on Thursday.
