This article on ‘Supreme Court rules the Governor not entitled to enter the political arena: Facts and Laws (Shiv Sena Case)’ was written by an intern at Legal Upanishad.
INTRODUCTION
Governor is a nominal executive head of the state. He forms an important part of the state executive where he acts as the chief executive head. The central Government nominates the governor for each state. The governor has to act on the aid and advice of the council of ministers headed by the chief minister. Through the constitution, the governor has provided some power such as discretionary power, judicial power, financial emergency power, and legislative power and the governor has to act according to those powers given to him by the constitution.
Every politician in our country is bound by the constitution and they cannot go beyond the constitution and if they do the same they will be treated as a criminal like a normal citizen in India and they will be punished accordingly by the laws and acts which are there for committing or breaching the constitution. Governor is the head of the state and like all other politicians, he is bound by the constitution.
Through this article, the author will give you an enhanced view of where the Supreme Court ruled that the governor is not entitled to enter into a political arena through a famous case Shiv Sena Case.
FACTS (SHIV SENA CASE)
Uddhav Thackeray, a leader of the Shiv Sena and the Maha Vikas Aghadi (MVA), was sworn in as the chief minister of Maharashtra on November 28, 2019. The Shiv Sena, Nationalist Congress Party, and Indian National Congress have joined forces to form MVA.
Mr. Eknath Shinde, the Shiv Sena’s legislative leader, along with a number of other Shiv Sena MLAs vanished on June 21, 2022. The ‘rebel’ group originally relocated to Surat before proceeding to Gauhati. They said that they lacked faith in CM Thackeray and the MVA coalition since they supported the Shiv Sena philosophy.
On June 25, 2022, the Thackeray group delivered a notice for acting against party interests and began disqualification procedures against the dissident group. The notification was handed to the rebel group with 48 hours to reply. On June 26th, 2022, Mr. Shinde filed a petition with the Supreme Court of India disputing the actions taken to remove him and the other “rebel” MLAs from office.
A vacation bench of the Supreme Court, consisting of Justices Surya Kant and J.B. Pardiwala, issued an extraordinary Order on June 27, 2022. The dissident party was given 12 days of “breathing time” by the Bench to react to the Deputy Speaker’s (Acting Speaker) disqualification notice, which was issued on June 25th. The standard response period to notification of disqualification is seven days. The Court’s involvement came as a surprise. The Court often stays out of the House’s current processes in favour of awaiting the Speaker’s decision, which it may then examine.
The Deputy Speaker was also given notice by the Shinde faction to vacate his position. The Shinde gang also contacted Governor Bhagat Singh Koshyari at the same time. They announced that they were no longer supporting the MVA alliance. To determine if the Uddhav Thackeray administration still had the backing of the Maharashtra Legislature, the Governor ordered a floor test to be held on June 30.
Because disqualification procedures against the rebel MLAs were still underway, the Thackeray side contested the results of the floor test before the SC. The floor test was scheduled for June 29, 2022, but the court declined to postpone it, indicating that the floor test’s findings will depend on how the SC hearings turned out. CM Thackeray resigned shortly after the SC’s Order without taking the floor test.
The matter was referred to a 5-Judge Constitution Bench on August 22, 2022, by a 3-Judge Bench made up of former CJI N.V. Ramana and Justices Krishna Murari and Hima Kohli.
On February 14, 2023, the Shiv Sena case was heard by a 5-judge Constitution Bench under the direction of Chief Justice D.Y. Chandrachud. The Thackeray side asked for the matter to be referred to a 7-Judge Bench during this hearing. The Bench resolved on February 17th, 2023, after hearing from the parties, not to refer the matter to a bigger Bench before a thorough hearing.
The Electoral Commission of India (ECI) granted Shinde’s group the party name Shiv Sena and the bow and arrow emblem on February 17th, 2023. The Thackeray side started claiming that the
Shinde group ought to be dismissed since their activities constituted desertion on February 21st, 2023.
WHAT IS DEFECTION?
According to the Constitution’s 10th Schedule, defection is the act of a lawmaker switching political parties after winning an election. Under the 10th Schedule, legislators who have left their party are unable to hold office.
WHY ARE LAWS AGAINST DEFECTION REQUIRED?
Mr. Gaya Lal, a Haryana-based MLA, switched parties three times in a single day in 1967. As a result, “Aaya Ram, Gaya Ram” became well-known. Governments become unstable as a result of these defections. In order to combat defections and get rid of possible political corruption, the anti-defection provision was inserted into the Constitution in 1985. This legislation upholds the sacredness of open and transparent elections while valuing the voters’ choice.
ARGUMENT FROM THE THACKRAY SIDE
The Shinde faction was accused of desertion by the Thackeray group because of its contempt for the party whip, selection of a new deputy speaker, demand for a floor test, and insistence of its majority. Additionally, they claimed that the Governor’s request for a floor test was unlawful and that by doing so, he effectively acknowledged a “split” within the party. Splits, which were formerly exempt from the defection rule, no longer shield elected officials from being disqualified for defection.
They also suggested that the SC should reevaluate its ruling in the 2016 Nabam Rebia case. According to this ruling, a Speaker cannot start disqualification actions against House members while a notification of his own dismissal is still pending. The Thackeray camp said that members who were considering defecting had a simple way to end the meeting. They just needed to submit a notification calling for the Speaker’s dismissal.
WHAT DO THE SHINDE GROUP’S MAJOR DEFENCES CONSIST OF?
The MLAs from the Shinde group, however, asserted that they had not left the Shiv Sena. They are the real Shiv Sena, and their acts are the product of internal dissension. Additionally, the Speaker of the House, not the SC, had the power to rule in cases involving the disqualification of MLAs.
Additionally, they said that the Governor had the legal authority to call for a floor test since he had sufficient grounds to think that Mr. Thackeray did not control the majority of the House.
Furthermore, they said that Nabam Rebia (2016) made it very plain that a Speaker cannot initiate disqualification procedures against other House members while a notice of removal is pending in the chamber.
JUDGEMENT
The Supreme Court will issue its ruling in the Shiv Sena case involving the conflict between the Eknath Shinde and Uddhav Thackeray factions. The verdict will determine the future of the current Eknath Shinde-led Maharashtra administration.
On February 14, 2023, the Constitution Bench, which was made up of Chief Justice of India DY Chandrachud, Justices MR Shah, Krishna Murari, Hima Kohli, and PS Narasimha, began hearing the Shiv Sena case.
The Supreme Court declined to reinstate the Uddhav Thackeray government because he resigned during the Shiv Sena revolt last year without taking the floor test, therefore the Eknath Shinde administration is still in power.
CONCLUSION
The Supreme Court’s ruling will make the Constitution’s 10th Schedule’s boundaries more clear. The judgement is anticipated to specifically address the Speaker’s, Governor’s, and SC’s authority in cases involving internal dissents, splits, and party rebellions.
If the Bench finds that the Shinde group left the Shiv Sena, they would essentially promote the role of party identity above individual member liberty in important House decisions. This implies that individual party members cannot ignore the Whip and cast a vote or abstain from casting a vote against the party’s desires in the name of “internal dissent.”
The Governor was wrong to call for the floor test on June 28, 2022, and the SC’s June 29th Order refusing to halt the floor test was also incorrect if the activities of the Shinde group amount to defection. This implies that the Governor cannot order a floor test in cases of disqualification (for defection) prior to the House passing a resolution of no confidence.
Additionally, if the Thackeray side wins, the function of the ECI will be made clear. It will demonstrate that the Shinde group was improperly given the Shiv Sena party name and emblem by the ECI. The choice of the ECI cannot be made only on the basis of whatever group received the majority of votes in the Legislature.
On the other hand, if the Bench decides that the Shinde group did not leave the Shiv Sena, then the autonomy of each individual member supersedes the party’s identity. In doing so, the Governor would be entitled to call for a floor test if he had cause to believe that a party leader does not have the support of the majority of the House. This would prevent the House from passing a no-confidence resolution.
It will also conclude that the ECI was correct to give the Shinde faction the Shiv Sena’s bow and arrow insignia. Which side will leave this judgment with the moniker “the real Shiv Sena” depends on whether the case is referred to a bigger bench.
REFERENCES
- Shiv Sena v Shivc Sena-Supreme Court Judgement Today Live Updates, Available at: https://www.livelaw.in/supreme-court/shiv-sena-supreme-court-eknath-shindeeknath-shinde-uddhav-thackeray-228443
- Supreme Court to deliver the judgement in Shiv Sena Case tomorrow, Available at: https://www.livemint.com/news/supreme-court-to-deliver-the-judgment-in-shiv-sena-case-tomorrow-11683715981447.html
- Maharashtra Politics Case: What lies ahead for Maharashtra Assembly Speaker After Supreme Court Judgement, Available at: https://www.barandbench.com/news/litigation/maharashtra-politics-case-what-lies-ahead-maharashtra-assembly-speaker-supreme-court-judgment
- Supreme Court allows EC to decide on ‘real shiv sena case’, Available at: https://maktoobmedia.com/india/supreme-court-allows-ec-to-decide-on-real-shiv-sena/
- Supreme Court Verdict on Maharashtra: What was the 2022 Political Crisis in the State, Available at: https://indianexpress.com/article/explained/explained-politics/supreme-court-verdict-maharashtra-shiv-sena-explained-8603432/