Can Uddhav Thackeray Find a Way to Defeat Shinde Govt Through Supreme Court?

There are still cases before the apex court that could have significant effects in Maharashtra.

While his resignation as Chief Minister of Maharashtra may have made it look like Uddhav Thackeray had thrown in the towel, the Shiv Sena supremo still looks to be fighting for his Maha Vikas Aghadi government.

During the floor test for the new Eknath Shinde-Devendra Fadnavis government, his son Aaditya Thackeray voted against the new regime. And barring two recent defectors to Shinde's faction of the Shiv Sena, his other MLAs did not vote in favour of the 'ED' government either.

Thackeray has also moved the Supreme Court with a fresh application challenging the decision of new Maharashtra Assembly Speaker Rahul Narvekar to recognise an MLA from Shinde's faction as the whip of the Shiv Sena the previous night.

With Aaditya Thackeray potentially facing disqualification because of his vote (which defied the newly recognised party whip's directions), this appears to signal that the Thackerays are still looking to win back their government through the proceedings in the Supreme Court.

Wasn't it All Over for Uddhav Thackeray After Eknath Shinde Took Oath?

Normally, once a new CM takes oath and proves their majority on the floor of the state Assembly, that would be the end of things. The Maharashtra Assembly has voted in a new Speaker, the new Speaker has recognised a new party whip for the Shiv Sena, and now all Shiv Sena MLAs have to follow the whip's directions or face disqualification.

However, the situation in Maharashtra – and indeed all too many states in India where similar machinations and resort shenanigans keep on coming into play – is far from normal.

A lot of that has to do with the Supreme Court's decisions last week.

On 27 June, it agreed to hear the petitions filed by Eknath Shinde and his then-rebel MLAs which argued that then-Deputy Speaker Narhari Zirwal should not be allowed to decide on the disqualification notices against them, as they had sought his removal.

There was a clear legal issue at play here, based on the Nabam Rebia judgment of the Supreme Court in 2016, which had said that it would be unfair for a Speaker/Deputy Speaker to decide on disqualification of MLAs if their post itself was under challenge.

At the same time, Deputy Speaker Zirwal argued that the notice for his removal was not valid as it had not been sent through official channels and therefore could not be verified, and he had communicated his rejection of it to the rebels.

It was understandable that the court needed to hear detailed arguments before it decided whether there was a valid notice for the Deputy Speaker's removal, and that till this was figured out, it wouldn't be fair to allow him to disqualify the 16 rebels to whom notices had been sent.

What was not understandable was why the court only decided to take up the matter again on 11 July, despite the urgency of the case given what was happening in Maharashtra.

The court held that the Deputy Speaker could not decide on the disqualification notices till 12 July, giving two weeks for the rebels to respond, without specifying any reason for why so much time was needed.

On the day itself, the lawyers for Uddhav Thackeray's faction warned that there was likely to be an attempt to change the status quo in the state during this lengthy timeline. And sure enough, Governor Bhagat Singh Koshyari ordered a floor test for 30 June.

The Supreme Court was then approached by the Uddhav Thackeray faction to stay the floor test, since the issue of disqualification of the rebels needed to be decided first.

But the vacation bench of Justices Surya Kant and JB Pardiwala refused to stay the floor test, as a result of which Uddhav Thackeray decided to resign.

However, even though the combination of the two Supreme Court decisions brought about the fall of the MVA government, it also left a door open somewhat for the unlikely combine to keep fighting, as it held that the trust vote to be conducted then would be subject to the final decision in the cases before the court.

"We don't think the matter will become infructuous. Suppose if we find later that floor test was conducted without authority, we can annul it," the bench remarked during the hearing, adding "It is not an irreversible situation."

It looks like this is what the Uddhav Thackeray faction is still holding on to: that the Supreme Court could eventually hold that there had been no valid notice for removal of Deputy Speaker Narhari Zirwal, and that he had the power to decide on the disqualification of Shinde and his rebels.

In that situation, Thackeray is evidently hoping the Supreme Court will annul all the decisions which have taken place in Maharashtra since then and restore the status quo before 30 June. Once Zirwal then disqualifies the rebels, the MVA can try once again to demonstrate that it has a majority in the reduced Assembly.

But is That Really Possible?

Going by the logic used by the apex court to not interfere with the trust vote, it should be possible.

However, there are a number of difficulties with this approach.

First off, a legal technicality. The order on 29 June only says that the proceedings of the trust vote scheduled for 30 June would be subject to the outcome of the cases it was hearing.

That trust vote, of course, never happened, so it can be argued that the subsequent events in Maharashtra cannot be overturned because of the court's eventual findings on Zirwal's ability to disqualify the rebels.

Secondly, there is the small matter of Zirwal no longer being the authority to decide disqualification proceedings in the Maharashtra Assembly. He was only doing so at the time because the former Speaker, Nana Patole, had resigned to become leader of the Congress in Maharashtra.

But now there is a new Speaker, Narvekar, and he is the person who is supposed to consider any such pleas.

It may only seem fair that Zirwal should decide the matters since Narvekar hadn't been appointed at the time, but this is complicated. The court could hold that Narvekar was never validly appointed since all the developments were subject to its decision on the disqualification petitions, but the legal technicality mentioned earlier could make that difficult.

Alternatively, the court will have to specifically hold that even though Narvekar is still at present the Speaker of the Assembly, because the disqualification issues were raised prior to his appointment, he cannot hear them.

There is no precedent for this, however, and so the court is in uncharted waters.

Thirdly, there is the broader complication of a new government being in place which has already proved its majority. When faced with complications over who has the right to form a government, the court has tended to rely on floor tests as the solution.

Here, the court would have to order that the floor test already conducted is not valid, which it has never done in the past. The bench did indicate it has the power to annul a floor test in its order on 29 June, but again, these are untested waters.

All of this is complicated by how many subsequent decisions would have to be unpicked, including Narvekar's appointment, his acceptance of Shinde as leader of the Shiv Sena, his acceptance of a Shinde-faction MLA as party whip, the oath-taking of Shinde and Fadnavis and any government business conducted by the new administration.

This is a Gordian Knot of incredible proportions, and there is no sword that can just cut through it all.

And if there's one thing we've learnt about the Supreme Court when faced with tricky matters like this – for instance all the legal jiggery-pokery that went into unraveling Article 370 and changing the status of Jammu and Kashmir – it really prefers to leave things alone.

This would, of course, be a terrible idea, since it would take whatever little point there is left to the anti-defection law and run a bulldozer through it. If MLAs can just become the 'true party' without a decision by the Election Commission, without them resigning or merging with another party, then the anti-defection law is entirely worthless.

While this would still be difficult with a national party like the Congress, perhaps, it would spell the end of regional parties and their ability to take on the juggernaut of a dominant national party like the BJP.

There are serious constitutional issues at play here that the Supreme Court should be deciding, but again, its record in recent years of hearing matters where serious constitutional issues are at play is dismal.

In addition to the Kashmir cases, the challenges to electoral bonds have remained in cold storage for years, as have the challenges to the CAA, and, lest we forget, demonetisation as well.

Does the Arithmetic Even Match Up Any More?

A convenient reason for the apex court to avoid hearing the matters any more could end up being the fact that even if the clock is turned back somehow, Uddhav Thackeray may no longer be able to prove his majority.

Assuming the court somehow allows Deputy Speaker Zirwal to disqualify 16 Shiv Sena MLAs including Shinde, this reduces the strength of the Assembly to 271, meaning the majority required is 136.

In June, the Thackeray faction had not sent disqualification notices to the 22 other rebels camped out with Shinde in Guwahati, perhaps hoping that once disqualification proceedings were launched against some of them, the rebellion would be abandoned.

But now, those 22 other rebels – and two who had initially remained loyal – have all made their choice. Without them, it is difficult to see how Thackeray can make it to the 136-mark.

Technically, if everything is reset and the original disqualifications happen, this would allow Thackeray to issue a whip to the remaining Shiv Sena MLAs, which would just about give him the numbers required.

But if any of them refuse to follow the whip, then this puts him in trouble. He could of course disqualify them for voting against the whip, but he would have still lost a floor test. Even if he can somehow make any eventual floor test subject to disqualifications, if he has to get rid of all 40 who voted for Shinde, Devendra Fadnavis will become the new CM.

This is because the BJP has 106 MLAs, and 18 other non-aligned MLAs are backing them, ie 124 MLAs. If all 40 Shinde MLAs are disqualified, the House goes down to 247, with 124 as the majority mark.

And this is all assuming that the Supreme Court allows Shinde and co to be disqualified.

Given the numbers with Shinde, he can try to argue that the anti-defection law cannot be used to disqualify any of them, given Paragraph 4 of the anti-defection law allows a merger of a political party where 2/3 of its legislature party agree.

While this may not seem to apply in Shinde's case because his MLAs aren't merging with another party, the Goa bench of the Bombay High Court recently allowed a very liberal interpretation of the concept of a merger, which the Supreme Court could also decide to adopt.

In short, Uddhav Thackeray is betting everything on the matters before the Supreme Court. But the situation is so complicated (thanks to the Supreme Court's own decisions) that it is unlikely to be the saviour he needs. And even if somehow it did everything he hopes for, he could still find himself short on the floor of the House.