Explained | What is the SC ruling on Sena vs. Sena?

Explaining the judgment which decided the matter of the Shiv Sena split which eventually resulted in the change of government in Maharashtra

The story so far: In a unanimous judgment, the Supreme Court on Thursday held that then Maharashtra Governor Bhagat Singh Koshiyari’s call for a trust vote, which led to the resignation of the Uddhav Thackeray-led Maha Vikas Aghadi government last June, was illegal. It said that Mr. Koshiyari was “not justified” in calling Chief Minister Uddhav Thackerary to prove his majority on the floor of the House. But the Court also said that it could not reinstate Mr. Thackeray as Chief Minister because he had resigned instead of facing the trust vote.

Last year, the Uddhav Thackeray-led MVA government was toppled and replaced by another government, comprising a faction of the Shiv Sena, which claimed to be the “real” Sena, the Bharatiya Janata Party and several Independent MLAs. The leader of the breakaway Sena faction, Eknath Shinde, became Chief Minister.

The first petition was filed by Mr. Shinde last June after notices were issued by then Deputy Speaker of the Maharashtra Assembly, Narhari Zirwal, against 40 rebel MLAs under the 10th Schedule of the Constitution which deals with disqualification on the grounds of defection. Thereafter, petitions were filed by the Thackeray group challenging the then Maharashtra Governor’s decision to call for a trust vote and the swearing-in of Mr. Shinde as Chief Minister. The election of the new Speaker, Rahul Narwekar, was also challenged. A Constitution Bench of Chief Justice of India D.Y. Chandrachud, Justices M.R. Shah, Krishna Murari, P.S. Narasimha and Hima Kohli had reserved its judgment on March 16. On May 11, based on the five petitions and arguments made by both parties, the Court gave its ruling on questions of law that arose in this case in a 141-page judgment.

The Speaker is the authority to adjudicate petitions for disqualification under the 10th Schedule. The petitioners wanted the Court to give its decision on the issue of disqualification of Mr. Shinde and his supporters. However, the Court said it “cannot ordinarily adjudicate petitions for disqualification under the 10th Schedule. There are no extraordinary circumstances in the instant case that warrant the exercise of jurisdiction by this Court to adjudicate disqualification petitions. The Speaker must decide disqualification petitions within a reasonable period.”

The Court said an MLA has the right to participate in the proceedings of the House “regardless of the pendency of any petitions for their disqualification. The validity of the proceedings of the House in the interregnum (the period between a regime change) is not ‘subject to’ the outcome of the disqualification petitions.”

The Court noted that the Governor was not justified in calling upon Mr. 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 Mr. Thackeray had lost the confidence of the House.” But the Court also said that “status quo ante cannot be restored” because Mr. Thackeray did not face the floor test and resigned from the post. The Governor, it said, was justified in inviting Mr. Shinde to form the government.

Questions arose on whose whip is binding, if the whip appointed by the political party and the one acting on behalf of the legislature party (the Shinde group in this case) give different instructions to members. The Shinde faction argued that it is the legislature party that appoints the whip. The Court disagreed: “To hold that it is the legislature party which appoints the Whip would be to sever the figurative umbilical cord which connects a member of the House to the political party. It would mean that legislators could rely on the political party for the purpose of setting them up for election, that their campaign would be based on the strengths (and weaknesses) of the political party and its promises and policies, that they could appeal to the voters on the basis of their affiliation with the party, but that they can later disconnect themselves entirely from that very party and be able to function as a group of MLAs which no longer owes even a hint of allegiance to the political party.”