Exercise of discretion not in accordance with law: SC chides Maha ex-Guv

The Supreme Court on Thursday said then Maharashtra Governor Bhagat Singh Koshyari erred in concluding that Uddhav Thackeray had lost the majority in the House.

 

The court said that neither the Constitution nor the laws enacted by Parliament provide for a mechanism by which disputes amongst members of a particular political party can be settled, and they certainly do not empower the Governor to enter the political arena and play a role (however minute) either in inter-party disputes or in intra-party disputes.

A five-judge bench headed by Chief Justice D.Y. Chandrachud and comprising Justices M.R. Shah, Krishna Murari, Hima Kohli, P.S. Narasimha, said: "There must be some objective material in addition to a mere request to call for a floor test. In the present case, the Governor did not have any objective material before him to indicate that the incumbent government had lost the confidence of the House and that he should call for a floor test. Hence, the exercise of discretion by the Governor in this case was not in accordance with law."

The bench noted that the Governor relied on the letters written by Devendra Fadnavis and seven 'independent' MLAs, calling upon him to direct Thackeray to prove his majority on the floor of the House.

Justice Chandrachud, who authored the unanimous judgment on behalf of the bench, said that first, both Fadnavis as well as the seven MLAs could have well moved a motion of no-confidence and nothing prevented them from doing so. Second, a request by some MLAs for a direction to the chief minister to prove his majority does not, taken alone, amount to a relevant and germane reason to call for a floor test, said Chief Justice Chandrachud, in a 141-page judgment.

The bench observed that the Governor relied on the letter dated June 25, 2022 from 38 Shiv Sena Legislative Party members claiming that the security provided to them and to their families was illegally withdrawn.

"The lack of security to MLAs has no bearing on the question of whether the government enjoys the confidence of the House. The appropriate response of the Governor in such cases is to ensure that the security that they are lawfully entitled to continues to be provided to them, if it has been removed. This was an extraneous reason that was considered by the Governor," said the bench.

On the aspect of withdrawal of security of MLAs, the Chief Justice stressed that this cannot be taken to mean that they had withdrawn their support on the floor of the House and nothing in any of the communications relied upon by the Governor indicates that the dissatisfied MLAs from the Shiv Sena intended to withdraw their support to the Chief Minister and the Council of Ministers.

The bench noted that the Governor relied on the letter dated June 21, 2022 addressed by Eknath Shinde to the deputy speaker stating that the appointment of Ajay Choudhari was illegal.

"The Governor may not enquire into or express an opinion on the validity of proceedings of the legislature. That is exclusively within the domain of the legislature itself or in certain circumstances (discussed in the previous segment of this judgment) within the domain of courts... the Governor ought not to have relied on the letter dated 21 June 2022. In any event, the contents of the letter did not indicate anything to suggest that the then-Chief Minister Mr. Thackeray had lost the confidence of the House," said the bench.

The top court said the Governor cannot exercise a power that is not conferred on him by the Constitution or a law made under it.

"Neither the Constitution nor the laws enacted by Parliament provide for a mechanism by which disputes amongst members of a particular political party can be settled. They certainly do not empower the Governor to enter the political arena and play a role (however minute) either in inter-party disputes or in intra-party disputes. It follows from this that the Governor cannot act upon an inference that he has drawn that a section of the Shiv Sena wished to withdraw their support to the Government on the floor of the House," said the bench.

The top court said the Governor was not justified in calling upon Thackeray to prove his majority on the floor of the House because he did not have reasons based on objective material before him, to reach the conclusion that Thackeray had lost the confidence of the House.

On March 16, the Supreme Court after hearing submissions for nine-days reserved its judgment on a batch of cross-petitions of Uddhav Thackeray and Maharashtra Chief Minister Eknath Shinde groups in connection with the Maharashtra political crisis.

(Sumit Saxena can be reached at sumit.s@ians.in )

--IANS

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