'Reinstate You? But You Resigned': SC To Shiv Sena Uddhav Faction's 'Status Quo Ante' Restoration Sumbmission

The Supreme Court wondered as to how it can reinstate the Uddhav Thackeray government in Maharashtra when the chief minister had put in his papers even before facing the floor test.

File Photo of the Supreme Court. ( Image Source :Getty )

The Supreme Court wondered on Thursday as to how it can reinstate the Uddhav Thackeray government in Maharashtra when the chief minister had put in his papers even before facing the floor test, as reported by the news agency PTI.  As the court sat for the hearing, the Thackeray faction made an impassioned plea for setting aside Koshyari’s order to Thackeray to take a floor test, asserting democracy will be in danger if it is not overturned.

According to PTI, the Thackeray faction made vehement submissions before the court urging it to turn back the clock and restore the “status quo ante” (previously existing state of affairs) as it had done in 2016 when it reinstalled Nabam Tuki as the chief minister of Arunachal Pradesh. 

Senior lawyer Kapil Sibal, representing the Thackeray bloc, urged a five-judge constitution bench headed by Chief Justice D Y Chandrachud to rescind governor B S Koshyari’s order for a floor test, a day after the apex court questioned his conduct in calling for a trust vote merely on the ground of differences between Shiv Sena MLAs.

Taking note of the submissions of senior advocate AM Singhvi also appearing for Uddhav Thackeray, the bench quipped, “So, according to you, we do what? Reinstate you? But you resigned. That’s like the court being asked to reinstate a government which has resigned before the floor test,” as reported by PTI.

The bench, also comprising Justice MR Shah, Krishna Murari, Hima Kohli, and PS Narasimha, reserved its verdict on cross-petitions filed by Thackeray and Maharashtra Chief Minister Eknath Shinde factions, asked Singhvi, “How can the court reinstate the chief minister, who did not even face the floor test.” The top court heard the arguments advanced by the two sides and the governor, who was represented by Solicitor General Tushar Mehta, over nine working days.

Eminent lawyers like Sibal, Singhvi, Davadutt Kamat and Amit Anand Tiwari appeared for the Thackeray faction and on the other hand senior advocates N K Kaul, Mahesh Jethmalani, and Maninder Singh represented the Shinde faction. Referring to the sequence of events before the Uddhav-led Maharashtra government resigned Singhvi said, “My resignation is irrelevant. Your lordships are not reinstating anyone but restoring the status quo ante,” as quoted by PTI. 

He referred to the 2016 Nabam Rebia judgment by which the top court had turned the political clock back in Arunachal Pradesh by reinstalling Tuki as the state's chief minister and unseating the BJP-supported Kalikho Pul government.

Singhvi said, “The resignation of the ex-CM on June 29, 2022 would be irrelevant… as once the illegal act of the governor is allowed to be implemented, the result of the trust vote was a known and foregone conclusion, and factually there was no need for the ex-CM to subject himself to it.” 

He submitted the crux of the issue raised by Thackeray remains that the direction to hold the trust vote was an “illegal act” because the governor did so by recognising a faction of 34 legislators, PTI reported. “The ex-CM’s participation or absence of participation would not dilute that fundamental and basic illegality in any manner,” he said.

The CJI told Singhvi, “No, but status quo ante would have been a logical thing to do provided that you had lost the trust vote on the floor of the house. Because, then clearly you have been ousted from power based on the trust vote, which could be set aside. Look at the intellectual conundrum….You chose not to face the trust vote,” as quoted by PTI.

Singhvi termed the development a “red herring” and said prior to the governor ordering the floor test, the matter was sub-judice in the top court. “So, you are saying that Thackeray resigned only because he was called upon by the governor to face the floor test?” the court asked.

Singhvi replied in the affirmative and said as the matter was sub-judice, the subsequent direction of the governor for the floor test should not have been allowed. “You are frankly accepting the fact that you resigned because the trust vote would have gone against you,” the CJI quipped, PTI reported.

Sibal, representing the Thackeray faction, urged the top court to rescind the order, a day after the apex court said such action by the governor can topple an elected government and that the governor of a state cannot lend his office to effectuate a particular result. Concluding his rejoinder arguments, Sibal said, it’s a moment in the history of this court when the future of democracy will be determined.

“I am absolutely certain that without the intervention of this court our democracy will be in danger because no elected government will be allowed to survive. It is with this hope I make this plea to this court to allow this petition and set aside the order (of floor test) of the governor,” Sibal said, as quoted by PTI.

Sibal said if Sena MLAs had lost their faith in the government, they could have voted against it in the House when a money bill was moved and reduced it to the minority.

“It is not that the government cannot run in minority. Former Prime Minister PV Narasimha Rao ran a minority government. There is no scope for the governor to recognise those (rebel) MLAs and call for the floor test. Here, what they want is to topple the government and become chief minister and deputy CMs and use the position of governor for that. I don’t want to say more, everything is in the public domain,” Sibal said, as quoted by PTI.

“I have my political experience and lordships have their judicial experience, which is enough to understand this. I can say we have reduced ourselves to a level that we are mocked. People don’t believe us anymore,” Sibal said, making a fervent pitch for setting aside the governor’s order for a floor test.

Governors can only deal with alliances and political parties and not individuals, otherwise, it will “create havoc”, the senior lawyer asserted.

“Now, if all of Shiv Sena had gone to the BJP, would the governor still have called for floor test. That’s the ‘Aaya Ram-Gaya Ram’ principle which we gave up long ago. It’s disastrous for democracy…the legislator has no identity other than being a representative of the political party,” Sibal said.

“When we enter this court we are in a different aura, we come with hope, expectations. If you look at the history of civilizations, all injustices are based on power. You (top court) are the hope of 1.4 billion people and you cannot let democracy be destabilised in this callous, uncouth fashion,” he said. During the hearing, Sibal also referred to Emergency imposed by Indira Gandhi.

“There have been occasions like the ADM Jabalpur (1976 verdict) which is in dissonance with what this court has done over the years. This is an equally significant case for our democracy to survive,” Sibal said, as quoted by PTI. The 1976 judgment, delivered by P N Bhagwati during the Emergency that was in force from June 25, 1975, to March 21, 1977, held that a person’s right to not be unlawfully detained (habeas corpus) could be suspended in the interest of the State.

A political crisis had erupted in Maharashtra after an open revolt in the Shiv Sena, and on June 29, 2022, the apex court refused to stay the Maharashtra governor’s direction to the 31-month-old MVA government to take a floor test in the assembly to prove its majority. Sensing impending defeat, Uddhav Thackeray had resigned, paving the way for Eknath Shinde to become the chief minister.