The Supreme Court wondered on Thursday as to how it can
reinstate the Uddhav Thackeray government in Maharashtra when the chief minister had put in his
papers even before facing the floor test, after the faction led by him pitched
for setting aside the governor's June 2022 order to the CM 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 governor B S Koshyari's order for a floor test, a day
after the apex court questioned his conduct in calling for a trust vote merely
on the ground of differences between Shiv Sena MLAs.
The bench took note of the submissions of senior
advocate AM Singhvi, also appearing for Uddhav Thackeray, and quipped "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 comprising Justice MR Shah, Krishna Murari, Hima
Kohli and PS Narasimha, which reserved its verdict on cross petitions filed by
Thackeray and Maharashtra Chief Minister Eknath Shinde factions, asked Singhvi,
How can the court reinstate the chief minister, who did not even face the floor
test.
The top court heard the arguments advanced by the two
sides and the governor, who was represented by Solicitor General Tushar Mehta,
over nine working days.
While a battery of eminent lawyers including Sibal,
Singhvi, Davadutt 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
June 29, 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.
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."
Terming the development a "red herring", the senior
lawyer said 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.
As the court sat for the hearing, the Thackeray faction made an
impassioned plea for setting aside Koshyari's order to Thackeray to take a
floor test, asserting democracy will be in danger if it is not overturned.
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.
Concluding his rejoinder arguments, Sibal said, it's a moment in
the history of this court when the future of democracy will be determined.
"I am absolutely certain that without the intervention of
this court our democracy will be in danger because no elected government will
be allowed to survive. It is with this hope I make this plea to this court to
allow this petition and set aside the order (of floor test) of the
governor," Sibal said.
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.
"Now, if all of Shiv Sena had gone to
the BJP, would the governor still have called for floor test. That's the 'Aaya
Ram-Gaya Ram' principle which we gave up long ago. It's disastrous for
democracythe legislator has no identity other than being a representative of
the political party," Sibal said.
"When we enter this court we are in a different
aura, we come with hope, expectations. If you look at the history of
civilizations, all injustices are based on power. You (top court) are the hope
of 1.4 billion people and you cannot let democracy be destabilised in this
callous, uncouth fashion," he said.
During the hearing, Sibal also referred to Emergency
imposed by Indira Gandhi.
"There have been occasions like the ADM Jabalpur
(1976 verdict) which is in dissonance with what this court has done over years.
This is an equally significant case for our democracy to survive," Sibal
said.
The controversial 1976 judgment, delivered by P N Bhagwati
during Emergency that was in force from June 25, 1975 to March 21 1977, held
that a person's right to not be unlawfully detained (habeas corpus) can be
suspended in the interest of the State.
A political crisis had erupted in Maharashtra after an
open revolt in the Shiv 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.
Sensing impending defeat, Uddhav Thackeray had resigned, paving the way for Eknath Shinde to become the
chief minister.
In another blow to the Thackeray bloc, the Election
Commission declared the Shinde faction as the real Shiv Sena on
February 17, 2023 and allotted to it the original bow and arrow election symbol
of the party founded by Balasaheb Thackeray.
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.