New Delhi,: 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.