Uddhav fate sealed after SC declined to stay Governor floor test direction

Shortly after the Supreme Court decision, Uddhav resigned as Chief Minister, bringing to an end the MVA rule.

The Uddhav faction of the Shiv Sena had gone to the top court against the Governor’s direction for a floor test. The Sena rebel faction led by Eknath Shinde joined the courtroom battle, pressing for an immediate floor test.

The vacation bench of Justices Surya Kant and J D Pardiwala, after a lengthy hearing on the petition by Sena Legislature Party Chief Whip Sunil Prabhu, said, “Having given our thoughtful consideration to the rival submissions: (i) We do not find any ground to stay convening of the Special Session of the Maharashtra Vidhan Sabha on 30­.6­.2022, i.e, tomorrow at 11.00 a.m. with the only agenda of a trust vote; (ii) The proceedings of the trust vote to be convened on 30­.6­.2022 shall be subject to the final outcome of the instant Writ Petition as well as the Writ Petitions referred to above; (iii) the Special Session of the Maharashtra Vidhan Sabha shall be conducted in accordance with the directions as contained in the communication… of the Governor of Maharashtra.”

The bench also allowed NCP legislators Nawab Malik and Anil Deshmukh, who are in custody, to participate in the Vidhan Sabha session.

Appearing for Prabhu, Senior Advocate A M Singhvi said the Governor’s letter on the floor test said that the Leader of Opposition met him last evening.

He asked won’t it be a case of putting the cart before the horse if the floor test was held Thursday without deciding on the disqualification of 16 Sena rebel MLAs. He wondered what would happen to the result of the floor test if the MLAs were to be subsequently held to be disqualified.

“Suppose the SC dismisses the MLAs’ petition and the (Deputy) Speaker disqualifies the MLAs, how will the court reverse the floor test?” Singhvi said, adding they would in such case stand disqualified from the date on which they were served notice. “That’s why we say it’s irreversible,” he said.

“It is akin to the Election Commission holding election saying the electorate will include dead people or people who have moved out. If floor test is done without determining who are disqualified, the pool in which it will be held will change,” he said.

“The size of the pool will depend on whether people have committed the Constitutional sin of defection,” Singhvi said.

This, he said “will lead to utter confusion” and “the only way out is to await outcome of the petition filed by the rebel MLAs” in SC, challenging the disqualification notices issued to them by the Deputy Speaker.

Singhvi contended that the floor test direction revealed “undue haste” and was “unholy” and done at “supersonic speed”.

“The Governor has to act on the aid and advice of the Council of Ministers. Whether he does that or not, he cannot definitely act on aid and advice of the Leader of Opposition which is what he appears to have done,” he said, referring to the meeting between BJP leader Devendra Fadnavis and the Governor Tuesday night.

Calling it a “pickled situation”, Singhvi said Sunil Prabhu is now the Chief Whip recognised by the Speaker but the rebels MLAs say it’s someone else. “So whose whip will be followed tomorrow?”

He said that “people who have changed sides and defected cannot represent the will of the people… Will heavens fall if there is no floor test tomorrow?” he asked.

Countering this, Senior Advocate Neeraj Kishan Kaul, who appeared for the rebel MLAs, said the floor test can never be delayed as it is the only way to determine political accountability. The way to avoid horse trading, he said, is on the floor of the House. He said the Supreme Court has held that pending proceedings of disqualification “are no ground to delay floor test”.

He said the “Supreme Court has held that both (disqualification and floor test) are distinct issues.”

Kaul said that as per the Supreme Court, disqualification proceedings have no bearing on a floor test which is “the healthiest thing that can happen in a democracy”.

“Supreme Court says that the moment a Chief Minister shows reluctance to prove his majority, it prima facie gives the view that he has lost the confidence of the House,” he said.

Kaul said he had seen people keen to take a floor test. “I have seldom seen a party so afraid to conduct a floor test.”

Justice Surya Kant sought to know who would be competent to participate if the floor test were to happen Thursday.

Kaul replied that while the argument is that the pool will change if they get disqualified subsequently, the SC has said that pendency of disqualification has no bearing on holding of a floor test.

He said the question if the Deputy Speaker has power to disqualify or not is a separate issue. But mere pendency of that matter, he said, has no bearing on the floor test. “Whose whip has to be followed is an internal party matter. In a situation of this kind, constitutional propriety calls for floor test,” he said.

Submitting that the Governor’s decision is not immune from judicial review, he said the question is whether this is the kind of situation where the court will substitute the Governor’s judgment with its own.

To a specific query from the bench, Kaul said there are 39 MLAs in the rebel camp and “that’s why this nervousness (in the ruling alliance)”. He said 16 of the 39 MLAs have been given notice for disqualification.

“We are not leaving Shiv Sena, we are the Shiv Sena. It’s a hopeless minority that’s trying to subvert,” Kaul said.

Senior Advocate Maninder Singh sought to contradict the petitioner’s argument that the Governor acted without aid and advice of the Council of Ministers and said there are rulings to show that such aid and advice is not needed to order a floor test.

Solicitor General Tushar Mehta, who appeared for the Governor, said the argument that the court has interdicted the Speaker is fallacious. He said it is the law which has interdicted him.

Singhvi countered the argument that floor test and disqualification are distinct. He said they are distinct only if there is no “fetter” on the Speaker. “It’s unrelated till Your Lordships put a fetter on the Speaker. After that it is related, it has to be.”

Singhvi also targeted the Governor: “It is repeatedly argued that the Speaker is always suspect, but the Governor is Holy Cow, Governor cannot be wrong, but the custodian of the Tenth Schedule is.”