Maharashtra has entered a zone of uncertainty as the Supreme Court constitution bench has reserved its judgment on a batch of petitions relating to the feud between the Uddhav Thackeray and the Eknath Shinde factions of the Shiv Sena.
Will Eknath Shinde continue as Maharashtra Chief Minister? Will the status quo as demanded by Uddhav Thackeray be restored, facilitating his comeback as Chief Minister? Will the Shinde faction MLAs face disqualification? Will the house be dissolved and early polls be held? Or will the current situation prevail?
Can the Supreme Court remove a Chief Minister?
The answer to the last question is - yes, it has happened in the past.
In 2016, the Supreme Court removed Kalikho Pul, who was Chief Minister of Arunachal Pradesh for 145 days (five months), and restored status quo ante. All his decisions were rendered null and void.
This is a very complex case, which has turned the Tenth Schedule, which deals with anti-defection, on its head. MLAs from the Shinde camp didn't defect to or merge with any other party and claimed to be the real Shiv Sena.
With the help of a pliable Governor (as alleged by the Uddhav faction) they managed to secure a majority along with the BJP in a trust vote and appointed their own Speaker.
The Chief Justice of India, DY Chandrachud, has punched holes in key arguments put forth by both the factions and the Governor. And in my opinion the judgment hinges on these two points.
Uddhav Thackeray resigned before the trust vote, so how can he be reinstated?
Staring at defeat, Uddhav Thackeray didn't face the trust vote and resigned before it. This could be his biggest blunder. At the time, he was speaking on Facebook Lives and telling the people of Maharashtra that Shinde betrayed the Thackeray family.
Even if defeat was inevitable, how could Uddhav Thackeray lose a golden opportunity to make his case before the people? That too, in assembly proceedings telecast live. Those who used the opportunity to their advantage were Atal Bihari Vajpayee in 1996 in Lok Sabha and more recently, BS Yediyurappa in 2018 in Karnataka's Vidhan Soudha. Further Shinde faction MLAs would have voted against Uddhav, thus powering his disqualification plea, not following the whip is a stronger case for disqualification than anti-party activities.
On Uddhav Thackeray's request to set aside the June 2022 Governor order to the Chief Minister to take a floor test, the Chief Justice quipped. "So, according to you, we do what? Reinstate you? But you resigned. That's like the court being asked to reinstate a government which has resigned before the floor test."
"...status quo ante would have been a logical thing to do provided that you had lost the trust vote on the floor of the House. Because, then clearly you have been ousted from power based on the trust vote, which could be set aside. Look at the intellectual conundrum ....You chose not to face the floor test."
Shinde faction's strength becomes its weakness
The MLAs led by Eknath Shinde claimed from the start that they never left the party, that they are still in the Shiv Sena, and that they have not split or merged with any political party. They did not adopt the resignation route like Congress MLAs did in Madhya Pradesh and Karnataka or merge with the rival party like the Congress MLAs in Goa. This may ultimately allow them to escape disqualification.
However, it has now become their Achilles' Heel. The Chief Justice said the Shinde faction's loss of faith in the leadership of Uddhav Thackeray was "an internal party matter" over which the Governor has no jurisdiction.
"The letter of 34 MLAs to the governor cannot be construed that they have withdrawn the support. Now, if 34 MLAs are part of the Shiv Sena, what is the cogent material before the governor that calls for the floor test? Governors have to exercise their powers with the greatest circumspection," CJI Chandrachud said.
The Constitutional Conundrum...
So, then Governor Bhagat Singh Koshyari may not have been right in calling for a trust vote on the basis of a letter of discontent from the Shinde faction. But the ousted Chief Minister, who wants to be reinstated, didn't face the trust vote.
The Practical Considerations
There are many practical difficulties in restoring status quo. Let us assume that it is restored and Uddhav becomes Chief Minister but he doesn't have a clear majority. The Speaker is from his camp, so 39 MLAs of the Shinde faction could be disqualified. This will be challenged in courts.
The NCP and the Congress may question Uddhav Thackeray's claim on the Chief Minister's post (he becomes a junior partner). The BJP could again approach the Governor claiming Uddhav has lost his majority in a truncated house of 249. The Governor may order a floor test. Uddhav may face it or resign again before the floor test.
The BJP could approach the Governor with signatures of 125 MLAs (simple majority) in the House. Shinde won the trust vote 164-99. So even if all his MLAs are disqualified, the BJP would still enjoy a majority of 125 (164-39). The Governor may also put the House in suspended animation, impose President's Rule or dissolve the House and call for early polls.
This flux comes at a time when all is not well between Shinde and the BJP. The BJP-Shinde alliance lost a crucial by-poll in Kasba Peth, which has raised questions about how much support Shinde enjoys on the ground. The Chief Minister was censured by the High Court for interfering in the department of Atul Salve, a BJP minister in his government.
The Maharashtra BJP has announced that it will contest most of the state's 288 assembly seats, leaving just 48 for the Shiv Sena (Shinde). Shinde continues to function in the imposing shadow of his deputy Devendra Fadnavis.
The BJP had doubts about the stability of this government from Day One, the reason it passed up on the chief minister's post even though it has more than twice the MLAs.
The Supreme Court's verdict could change a lot for all parties.
(Amitabh Tiwari is a political strategist and commentator. In his earlier avatar he was a corporate and investment banker.)
Disclaimer: These are the personal opinions of the author.