The Supreme Court on Thursday faulted the former Maharashtra Governor Bhagat Singh Koshyari for asking former Chief Minister Uddhav Thackeray to face a floor test when there was no objective material before him to draw conclusion that he (Thackeray) had lost the confidence of the House but court refused to put the clock back and reinstate him (Thackeray).

“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. However, the status quo ante cannot be restored because Mr Thackeray did not face the floor test and tendered his resignation” said the five-judge constitution bench headed by Chief Justice DY Chandrachud.

Stating that they cannot quash the resignation by Thackeray which he had tendered voluntarily, the five-judge constitution bench also comprising Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice Pamidighantam Sri Narasimha said, “The Governor was justified in inviting Mr Shinde to form the government.”

The constitution bench said this as Thackeray camp had sought the court’s intervention to restore the status quo ante in the case.

Noting that there was no objective material before the Governor Koshyari to ask Thackeray to face floor test, the constitution bench pointed out that only thing that the Governor had with him was June 21, 2022, resolution by MLAs loyal to Shinde expressing discontent; there was nothing in the resolution to show that they wanted to exit the government or that they wanted to withdraw support from the government, the constitution bench said, noting that some of the MLAs were Ministers in Thackeray led Maha Vikas Aghadi government.

Floor tests cannot be used to resolve inter or intra-party disputes, the court said.

The MLAs’ statement that there was a threat to their life and liberty or that they did not have adequate security was not a reason to conclude that a government had fallen, the constitution bench said holding that “This was an extraneous reason that was considered by the Governor.”

Holding that the Governor’s discretionary powers are explicitly stated subjects in the Constitution, the bench said that the opposition or BJP leader Devendra Fadnavis could have moved a vote of no confidence but they did not.

The Governor did not have any objective material and exercise of discretion of the Governor in this case was not in accordance with law, the court concluded.

The constitution bench said that it was referring to the Nabam Rabia ruling by an earlier five-judge bench to a larger 7-judge bench. In Nabam Rabia judgment the court had ruled that the Assembly Speaker cannot proceed with a plea for disqualification of MLAs if a prior notice seeking his removal is pending decision in the House.

The court also said that the Speaker’s decision to appoint a Shinde camp person as the Shiv Sena’s whip was illegal as it was the political party and not the legislature party that appoints the whip and its leader to lead the legislature party.

It is “The political party and not the legislature party which appoints the Whip and the Leader of the party in the House. Further, the direction to vote in a particular manner or to abstain from voting is issued by the political party and not the legislature party,” the court said while making it clear that the edifice of the tenth schedule of the constriction for curbing defection was party centric.

“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” and elected members cannot disconnect it and the “In fact, the Tenth Schedule guards against precisely this outcome.”

On Thackeray camp’s plea that the Election Commission should hold its hand in deciding which faction represented the real Shiv Sena till the top court decides the entire issue including disqualification of Shinde camp MLAs by the Speaker of Maharashtra assembly, the constitution bench said, “The ECI, which is a constitutional authority, cannot be prevented from performing its constitutional duties for an indefinite period of time. Proceedings before one constitutional authority cannot be halted in anticipation of the decision of another constitutional authority.”