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Governor cannot exercise a power that is not conferred on him by the Constitution, says SC

STATING THAT the Constitution and laws do not empower the Governor to enter the political arena and play a role in inter or intra-party disputes, the Supreme Court on Thursday said that former Governor Bhagat Singh Koshyari was not justified in calling upon then Chief Minister Uddhav Thackeray to prove his majority in a trust vote on June 30, 2022, which had prompted the then CM to resign.

Reacting to the court’s order, Koshyari said he took decisions based on legislative rules as he is not a legal expert.

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“There must be some objective material in addition to a mere request to call for a floor test. In the present case, the Governor did not have any objective material before him to indicate that the incumbent government had lost the confidence of the House and that he should call for a floor test. Hence, the exercise of discretion by the Governor in this case was not in accordance with law,” the court said.

Thackeray had resigned on June 29, 2022, a day after Koshyari wrote to him stating that he was confident that Thackeray and his government had lost the trust of the House and was in minority and called upon him to face a floor test. The Thackeray-led group had approached the Supreme Court to seek a stay on the floor test but after the court directed for the vote to continue, Thackeray resigned.

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“The Governor is the titular head of the state government. He is a constitutional functionary who derives his authority from the Constitution. This being the case, the Governor must be cognizant of the constitutional bounds of the power vested in him. He cannot exercise a power that is not conferred on him by the Constitution or a law made under it. Neither the Constitution nor the laws enacted by Parliament provide for a mechanism by which disputes among members of a particular political party can be settled. They certainly do not empower the Governor to enter the political arena and play a role (however minute) either in inter-party disputes or in intra-party disputes,” the Constitutional bench of the Supreme Court said.

The court said that the Governor could not have acted upon an inference he had drawn that a section of the Shiv Sena wished to withdraw their support to the government.

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During the political developments in the state in June last year, Koshyari had first received a letter from 35 MLAs on June 25, 2022, claiming that the security provided to them and their families was illegally withdrawn by the state government. They claimed that this was done to coerce them into continuing to support the Maha Vikas Aghadi alliance against their free will. Koshyari had referred to this as one of the grounds to ask Thackeray to face the floor test. The Supreme Court said that the lack of security to the MLAs has no bearing on whether the government enjoys the confidence of the House. “This was an extraneous reason that was considered by the Governor,” the court said.

The Governor had also relied on a resolution by Eknath Shinde-led 34 MLAs stating that there was enormous discontent among the cadre and party workers of Sena over the formation of an alliance by the party with NCP and Congress. The court said that nothing in the communication relied on by the Governor indicated that the dissatisfied MLAs intended to withdraw support to the CM. “The communication expressing discontent on the part of some MLAs is not sufficient for the Governor to call for a floor test,” the court said, adding that there is a marked difference between a party not supporting a government and individuals within a party expressing discontent with their party’s leadership and functioning.

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The next communication to Koshyari was on June 28, 2022 by then Leader of Opposition Devendra Fadnavis, who in a letter, said he believed that Thackeray did not enjoy a majority on the floor of the House and sought for a floor test. Similar letters were written by seven independent MLAs to Koshyari, following which he wrote to Thackeray on the same day to prove his majority by convening a special session of the Vidhan Sabha on June 30, 2022.

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The court said that members of the Opposition parties made no attempt to issue a notice for a no-confidence motion. “…a request by some MLAs for a direction to the Chief Minister to prove his majority does not, taken alone, amount to a relevant and germane reason to call for a floor test,” the court said.

It, however, said that once Thackeray had resigned voluntarily, the Governor was justified in inviting Shinde to form the government as the BJP which had the highest candidates in the Assembly had extended its support to him. Referring to this, Deputy Chief Minister Devendra Fadnavis in his press conference said that it proves that the present government was legally formed.

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“It’s been three months since I quit the post of Governor. I keep myself away from political issues these days. The SC has given its verdict. Legal experts can comment on the verdict. I am not a legal expert, I am only familiar with legislative rules. I made my decisions based on these rules. If someone submitted his resignation to me what could I have done? Should I have said do not resign,” Koshyari told media personnel in Delhi.

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