SC Refuses to Stay Maharashtra Governor’s Call for Floor Test

Latest Update: Within an hour after the Supreme Court refused to stay the floor test, the Chief Minister of Maharashtra Uddhav Thackarey resigned. 

Playing a vital role in the crisis unfolding in the Maharashtra legislative assembly, the Supreme Court, on June 29th 2022, refused to stay the Maharashtra Governor’s call for a floor test. In the floor test, to be conducted on June 29th, the Uddhav Thackarey-led Maha Vikas Aghadi (MVA) government must prove that it continues to hold true majority in the State and still represents the will of the people. 

The Maharashtra case began with prominent Shiv Sena MLA Eknath Shinde leading a split from the party. Mr. Shinde, along with 39 out of 55 sitting Shiv Sena MLAs, stated his lack of confidence in the Deputy Speaker through a letter. The Deputy Speaker, Shiv Sena’s Narhari Zirwal, issued notice for defection proceedings under the Tenth Schedule against 16 rebel MLAs. 

In a first of its kind Order on June 28th, the Justices Surya Kant and Pardiwala stayed the disqualification proceedings until July 11th. Usually, the Court does not intervene in ongoing proceedings of the House—it may review the Speaker’s decision after it is finalised. 

The Maharashtra Governor, so far hospitalised with COVID, met with the Leader of the Opposition and announced soon after, that the floor test will be conducted on July 30th. 

The Court assembled long past regular working hours to hear the case today. Over four hours, sitting until 9pm, the Justices Surya Kant and Pardiwala contemplated one question— can the floor test be conducted before the disqualification proceedings are completed? 

What difference does the chronology make? If the floor test happens first, the rebel MLAs can vote against the MVA government. If the disqualifications proceedings happen first, they may be disqualified before the floor test. 

Senior Advocate Dr. Abhishek Manu Singhvi, appearing for the Maharashtra government, argued that the ‘constitutional sin’ of defection must be investigated first to ensure that the pool voting in the floor test represents the ‘true majority’ in the House. Senior Advocate Neeraj Kishan Kaul, appearing for the rebel MLAs, argued that the floor test must precede the disqualification proceedings—the Deputy Speaker must prove that it continues to represent the will of the people before wielding the power to disqualify. 

Dr. Singhvi: Constitutional Sinners Cannot Participate in Floor Test

Dr. Singhvi, relying on the SC decision in Rajinder Singh Rana v Swami Prasad Maurya (2007), argued that a defecting MLAs disqualification from the Assembly traces back to the day of the notice against them. The disqualification does not begin from the day of the Speaker’s decision. Hence, by allowing the floor test before the disqualification proceedings, the Court will allow an electoral college that is potentially not representative of the true will of the people. 

Predicting that the rebel MLAs’ lawyers would rely on a range of SC decisions that say the floor test is entirely unrelated to Tenth Schedule proceedings, Dr. Singhvi pointed out an important distinguishing fact. In all the other cases, the disqualifications remained pending due to voluntary inaction on the Speaker’s part. The Court hence found it unfit to delay the floor tests. In this case, Dr. Singhvi argued that the Court had placed a fetter on the Speaker’s power to complete the disqualification proceedings through its 28th June stay order. Without this fetter, the Speaker would have been free to complete the proceedings before the floor test. Accordingly, Dr. Singhvi argued that the past cases of Shivraj Singh Chauhan (2020) and Nabam Rebia (2016) will not apply to this set of facts. The floor test and the disqualifications are inextricably linked. 

Dr. Singhvi further argued that the Court’s decision of allowing the floor test tomorrow will be irreversible. The Maharashtra Legislative Assembly Rules bar the same resolution from being raised twice in one year. There will hence be no opportunity to raise a no confidence vote against the new government for a year. 

Finally, Dr. Singhvi argued that the Governor is not a ‘holy cow’, untouched by political pressures. He is constitutionally bound to act on the advice of the Chief Minister, not the Leader of Opposition as he has done in this case. Further, Dr. Singhvi held that Article 361 provides the Speaker personal immunity from appearing before Court for his actions. His actions are still subject to judicial review. The Court is, hence, competent to assess whether the Governor’s decision met ‘objective satisfaction’ based on relevant materials. 

Dr. Singhvi stated that the situation can be rectified in one of two ways. The Court may either order that the floor test be conducted after the 11th July hearings, or it may restore the Speaker to exercise his power of conducting disqualification proceedings immediately. 

N.K. Kaul: Speaker Must Prove Majority Support Before Using Powers to Disqualify

Senior Advocate Neeraj Kishan Kaul argued for the rebel MLAs. Solicitor General Tushar Mehta, for the Maharashtra Governor, and Senior Advocate Maninder Singh, also for the rebels, repeated his arguments. 

Mr. Kaul argued that the speaker’s legitimacy is under suspicion when a floor test has been called for. The speaker cannot proceed to exercise powers of disqualification until he has proved that he continues to hold the confidence of the majority of the House. 

Relying on Shivraj Singh Chauhan and Nabam Rebia, Mr. Kaul argued that disqualification and floor test have no bearing on each other. In Namab Rebia, he argued that a Constitution Bench held that ‘all existing members’ are allowed to vote in a floor test, including those against whom disqualification proceedings are pending. 

Mr. Kaul stressed the principle that floor tests must be conducted as soon as suspicion about a government holding majority arises. He stated that the ‘dance of democracy’ happens on the floor of the legislative assembly. Delays in floor tests endanger the health of the democracy, encouraging horse trading. 

Mr. Kaul stated that the Shiv Sena’s reluctance to participate in the floor test is unusual—a party that is confident in its majority will want an immediate floor test to clear all confusions. Mr. Kaul stated that 39 of the 55 sitting Shiv Sena MLAs are rebels. The leadership lacks a majority in its own party, let alone the House. The rebels, Mr. Kaul passionately stated, are not defecting from the Shiv Sena—‘we are the Shiv Sena’. 

The Court’s detailed Order, with reasons, is expected soon. Meanwhile, the floor test will continue tomorrow (June 30th). Every supporting vote will likely be precious to the Shiv Sena government—the Court allowed undertrial MLAs Nawab Malik and Anil Deshmukh, in prison on money laundering charges, to attend and participate in the floor test. 

The Court has clarified that hearings will continue in the challenge to the floor test on July 11th. Tomorrow’s test will be subject to the outcome of these hearings.