While refusing to stay the floor test in the Maharashtra Assembly on Thursday, the Supreme Court on Wednesday night ruled that the same will be subject to the final outcome of the petition filed by Shiv Sena Chief Whip Sunil Prabhu challenging the Maharashtra Governor’s direction to the Chief Minister to prove majority of Maha Vikas Aghadi Government.
Now that the Chief Minister has resigned, this preconditioning about the “final outcome” may not be relevant any more. For the argument’s sake, even if the MLAs are subsequently disqualified, the die has been cast and Uddhav Thackeray has no hope of staging a comeback in the numbers game.
After hearing all sides for more than three hours on Wednesday on Governor’s order for a floor test by the Shiv Sena-led Government in Maharashtra, a Supreme Court Bench comprising Justices Surya Kant and JB Pardiwala delivered the order around 9 pm, refusing to stay the
floor test.
However, the court issued notice on Shiv Sena Chief Whip Sunil Prabhu’s petition to all parties to respond and tagged the case with rebel MLA’s case against disqualification notice, scheduled for July 11 hearing.
The apex court said the final outcome of the floor test will be subject to the disqualification case. The court allowed jailed Ministers Nawab Malik and Anil Deshmukh to attend the floor test.
“We are not staying the floor test. We are issuing notices. You can file counter. We will hear on merits along with other cases on July 11. The result of tomorrow will depend on the final outcome of this petition,” the court directed, adding that the results of tomorrow will be subject to the final outcome of the petition before the court.
Senior Counsel Abhishek Manu Singhvi, appearing for Prabhu, said the entire voting pool will change if the floor test is held after disqualification. “The decision of the Speaker will change the pool who will be voting. Before plunging into the pool, the size has to be noted,” he said.
“If on July 11, the court decides the petition, say the Speaker’s bar is lifted, and certain MLAs are disqualified, then the test could have concluded the next day,” said Singhvi, arguing that the case before the top court will become infructuous.
Singhvi questioned the act of the Governor in showing undue haste in calling for floor test. “The Governor is bound to act on the aid and advice of the Council of Ministers. Here he may act on the advice of Ministers or not, but definitely cannot act on the advice of the Opposition,” he contended.
Senior Counsel Neeraj Kishan Kaul, appearing for Eknath Shinde, said the Speaker cannot decide disqualification proceedings when no-confidence motion against him is pending. “You (Speaker) are seized of a matter, you know there are proceedings against you. You cannot proceed at all. It is a jurisdictional issue,” Kaul said.
“When the CM has lost confidence in the House, the moment the CM shows reluctance, it shows that he knows he has lost the majority. This is all the more reason to have a floor test,” Kaul argued.
“Assuming a floor test takes place, who are competent to participate,” asked Justice Kant.
“Tomorrow if these people are disqualified, then the pool changes… the Supreme Court has clarified that there is no connection with the floor test,” Kaul responded.
“If you are sure about the majority, then just go ahead with the floor test. There is no need for people to go to Surat, Guwahati, let there be a floor test. And they are piggy backing on our petition by relating it to the floor test and asking for relief. If you want to prevent horse trading, then the best way to do it is floor test,” said Kaul, claiming they are the “real Shiv Sena”.
Solicitor General Tushar Mehta, appearing for the Governor, contended that the argument that the top court had interdicted the jurisdiction of the Speaker is incorrect.
“I must say first of all, that the argument that your lordships have interdicted his jurisdiction of the speaker, I say it is fallacious,” he submitted. He said the question boils down to whether the office of the speaker or deputy is being misused.
“Answer is ‘yes’. When I receive a motion of no confidence, the confidence where it can be tested is the floor. I can always ask some member to generate disqualification proceedings under Chapter 10,” he said. The Speaker cannot decide the voter list or electoral college, said Mehta.
The SG further contended that the Governor cannot ignore direct threats to 39 MLAs. “Horse trading is one way of winning a majority, but there are direct threats to the 39 MLAs. The Governor cannot ignore such issues,” he said, adding that the floor of the Assembly is where democratic powers originate.
“The source of the democratic powers is the floor of the Assembly. If you have power, good, if not, so be it. Test it,” the SG said.
Singhvi in his rejoinder arguments contended that there has not been a single instance of speaker being interdicted from proceeding with disqualification petition while allowing floor test to go on.
“There was not a single case where the Speaker’s hands were held on serious charges. When I repeatedly say that there is left hand denial on the efficacy on the tenth schedule and the right hand allows the floor test to go on, the answer cannot be floor test to go on. Despite tying hands on the tenth schedule, it is tried to be shown that it will not have any bearing on the floor test. If they are disqualified, then they will not be members from inception is not argued (by Shinde camp),” Singhvi said.