Governor should not enter political arena: CJI

A Constitution Bench led by CJI D.Y. Chandrachud made oral remarks while hearing a series of petitions on the political crisis in Maharashtra that led to the end of the MVA government in 2022

February 15, 2023 10:44 pm | Updated February 16, 2023 01:25 pm IST - NEW DELHI

Chief Justice of India D.Y. Chandrachud chairs a Constitution Bench hearing on February 15, 2023. Photo: YouTube/@supremecourtofindia5950

Chief Justice of India D.Y. Chandrachud chairs a Constitution Bench hearing on February 15, 2023. Photo: YouTube/@supremecourtofindia5950

The Supreme Court on Wednesday said Governors are not supposed to venture into the political arena of alliance-making among parties.

A Constitution Bench led by Chief Justice of India D.Y. Chandrachud made the oral remark when Solicitor General Tushar Mehta, appearing for the Maharashtra Governor, dwelt on how the Uddhav Thackeray faction of the Shiv Sena had left the “principled” pre-poll alliance between the BJP and the Shiv Sena to join the “opportunistic” post-poll alliance of the Maha Vikas Aghadi with the Nationalist Congress Party and the Congress.

“Here, the leader took his stable and went to the opposite party… People vote not individuals but an ideology and political philosophy…” Mr. Mehta said.

Chief Justice Chandrachud intervened to ask Mr. Mehta how a Governor was bothered by these political movements.

“How can a Governor be heard to say all this? On the formation of the government between the Shiv Sena and... How can the Governor have anything to say on all this? The Governor’s role is when they form the government... The Governor will ask them to have a trust vote... Governor should not enter the political arena,” the Chief Justice addressed Mr. Mehta.

Mr. Mehta, saying these were his submissions and not on behalf of the Governor, explained that he was only arguing on the “right of conscience” of every legislator. Every principled party member has the right to follow his conscience and stand up to his leader in a multi-party democracy, he said.

“I will not be able to go before my electorate if I sit with my opponents,” Mr. Mehta said. He noted that the Tenth Schedule (anti-defection law) of the Constitution was meant to prevent “unprincipled defections” and not “stifle genuine dissent”.

Senior advocate Kapil Sibal, for former Maharashtra Chief Minister Uddhav Thackeray, vehemently objected to Mr. Mehta’s submissions, asking if the Governor could comment on politics and alliances. “How is the Governor arguing all this? He [Mr. Mehta] cannot have a status independent of the Governor... He is now saying he is arguing in his individual capacity. What capacity? This is not fair,” Mr. Sibal said.

The Constitution Bench is hearing a series of petitions following the political crisis which rocked Maharashtra when current Chief Minister Eknath Shinde and his camp of followers rebelled against Mr. Thackeray and eventually brought down the MVA government in early 2022.

Senior advocate Harish Salve, for Mr. Shinde, was also on the same page as Mr. Mehta when he said the Tenth Schedule was an anti-defection law and not an “anti-dissent law”.

“The Tenth Schedule is not a weapon for a leader to hang on after losing the faith of his flock,” Mr. Salve said.

The Chief Justice said the case presented a “tough” situation. The disqualification petitions against Mr. Shinde and 15 other legislators had been pending before then Deputy Speaker Narhari Zariwal, who was himself facing a notice of removal at the time.

A 2016 judgment of the Supreme Court in the Nabam Rebia case had held that a Speaker or Deputy Speaker under a cloud could not hear the disqualification petition until he or she was first cleared.

The Chief Justice said, on the one hand, the judgment incapacitated a Speaker or Deputy Speaker from functioning as a Tribunal under the Tenth Schedule until his position was ratified by the House. “Meanwhile, there would be a free flow of human capital from one political party to another,” Chief Justice Chandrachud said.

On the other hand, if a Speaker or Deputy Speaker was allowed to function as a Tribunal, most likely it would allow that the leader of a political party would cling on to power despite losing the faith of his flock.

“This would facilitate a leader of a political party to hold on to status quo though he or she has really lost his or her leadership over a group of legislators… Both ends have very serious consequences,” the CJI remarked.

Also Read | Changing politics, incompatible Governors

Mr. Mehta said a Speaker under a cloud should not be allowed to tailor the electoral college which had the power to vote him out of the office. The notice for his removal should be decided first, as declared in the Nabam Rebia judgment.

Mr. Salve said there was no need to refer the Nabam Rebia judgment to a larger Bench of seven judges. The Nabam Rebia judgment would have applied had there been a trust vote in the Maharashtra Assembly in 2022. But, in this case, Mr. Thackeray had resigned before the trust vote. The discussion in court was merely academic now.

And if there was a trust vote, the 16 legislators, including Mr. Shinde should have been allowed to vote.

“A legislator cannot be seen to be disqualified the moment a disqualification petition is filed against him and until he is re-qualified,” Mr. Salve submitted.

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