Governor should not enter political arena, says SC

Satya Prakash

New Delhi, February 15

Taking exception to the Maharashtra Governor commenting on formation of government in the state, the Supreme Court on Wednesday said the Governor should not enter the political arena.

“How can the Governor be heard to say all this on the formation of government between Shiv Sena and BJP? How can the Governor say this? We are only saying the Governor should not enter the political (arena)…” a five-judge Constitution Bench led by CJI DY Chandrachud said during a hearing on constitutional issues arising out of the recent political crisis in Maharashtra.

The comment from the Bench came after Solicitor General Tushar Mehta – representing the Maharashtra Governor – said the Uddhav Thackeray-led Shiv Shena formed a government with those against whom the party fought in the assembly election.

Mehta clarified that he was only pointing out facts to facilitate a constitutionally correct decision.

“There was a pre-poll alliance between BJP and Shiv Sena. As Kihoto Hollohan’s judgement explains, when you go before a voter, you don’t go as an individual but as a representative with your shared belief or agenda. The voter doesn’t vote for individuals but for ideology of the party,” Mehta argued.

Terming the constitutional questions arising out of the recent political crisis in Maharashtra as “tough”, the Bench – which also included Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha—said they have “very serious” ramifications for the polity.

Disagreeing with the submissions of senior counsel Harish Salve, representing the Eknath Shinde faction of the Shiv Sena, the Bench said the issue is not merely an academic exercise.

“It’s a tough constitutional issue to answer for this reason because the consequences of both positions have serious ramifications on the polity. If you take Nabam Rebia (2016 SC judgement) position, as we have seen in Maharashtra- it allows the free flow of human capital from one political party to another.

“On the other end is that even if the leader of the political party has lost his flock, he can hold it down. So, adopting it would mean ensuring a political status quo though the leader has effectively lost his or her leadership over a group of legislators if we go against Nabam Rebia. Whichever way you accept, both ends of the political spectrum have very serious consequences. Both are not desirable,” it noted.

In the Nabam Rebia case from Arunachal Pradesh, a five-judge Constitution Bench had in 2016 held that the Assembly Speaker cannot proceed with a plea for disqualification of MLAs if a prior notice seeking removal of the Speaker was pending with the House.

The judgement had helped the rebel MLAs led by Eknath Shinde (current CM of Maharashtra). The Thackeray faction had sought their disqualification even while a notice of the Shinde group for the removal of Maharashtra Assembly deputy speaker Narhari Sitaram Zirwal, a Thackeray loyalist, was pending before the House.