APPOINTMENT OF MR. EKNATH SHINDE AS CHIEF MINISTER OF MAHARASHTRA: SUPREME COURT CLARIFIES

Category: Legal News
Blog Post Image
「 ✦ Content ✦ 」

In the case of Subhash Desai v/s Principal Secretary, Governor of Maharashtra & Ors, the Supreme Court had given its Judgment about Mr. Shinde, being appointed as The Chief Minister of State of Maharashtra, appointment of Mr. Narvekar as Speaker of Maharashtra Legislative Assembly, Disqualification of Mr. Thackeray as The Chief Minister of India by the Governor & Election Commissioner of India. 


FACTUAL NOTION- 

The Maharashtra State 14th Legislative Assembly for 288 constituencics were conducted during october 2019 & results were as follows- 

  1. BJP won- 106 seats,

  2. Shiv Sena won- 56 seats,

  3. NCP won- 53 seats, 

  4. Congress won- 44 seats,

  5. Independent won- 13 seats, 

& remaining seats were won by the other local parties. The MVA (Maha Vikas Aghadi) alliance of Shiv Sena, NCP & Congress was formed & the Government was formed 25th November, 2019, Mr. Thackeray sworn-in as The Chief Minister of Maharashtra. 


Following to which, until June 2022 the MVA Government was ruling the state. But, in June 2022 few MLAs of Shiv Sena were in contact with BJP. Whips were issued by Shiv Sena (UBT) (now) & the 34 MLAs directed their support to Mr. Shinde, “Continues to be the” leader of SSLP. The letter of support was sent to the Deputy Speaker, Mr. Narhari Zirwal. Later the 34 MLAs sent the letter to Deputy Speaker stating that he no longer enjoyed their support and calling upon him to move a motion for his removal from office. The notice was issued under Article 179(c) of the Constitution read with Rule 11 of the Maharashtra Legislative Assembly Rules 2019. 


Later on, 30 June 2022, Mr. Devendra Fadnavis wrote a letter to the Governor stating that one hundred and six MLAs from BJP and eight independent and other MLAs were extending support to Mr. Eknath Shinde to form the government. The Governor administered the oath of office to Mr. Shinde and Mr. Fadnavis on 30 June 2022 and they assumed the roles of Chief Minister and Deputy Chief Minister of Maharashtra, respectively. 


SUPREME COURT’s JUDEGMENT- 


(In the given article, the decision regarding appointment of Mr. Shinde as Chief Minister of Maharashta is given, for further readings & understanding refer to Supreme Court Judgment regarding particular case)



The Supreme Court held that- 


  1. Mr. Shinde’s  appointment as Chief Minister of Maharashtra, by the support of 106 BJP MLAs & 6 other Candidates (Independent) to Governor and also the support of 39 MLAs of Shiv Sena (Shinde Faction) is not barred by Article 164(1B) of the Constitution. The reasoning stated by the Supreme Court was that Article 164(1B) bars an MLA or a Member of the Legislative Council of a State (where one exists) from being appointed as a Minister if they have been disqualified under Paragraph 2 of the Tenth Schedule. The bar begins to operate only upon the member of the legislature incurring disqualification. Article 164(1B) does not interdict the appointment of a member to the post of a Minister if a petition for their disqualification under Paragraph 2 of the Tenth Schedule is pending PART E 135 adjudication before the Speaker. This is evident from the language of Article 164(1B), which states that a member who is disqualified under Paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister. 199. In other words, the mere institution of a disqualification petition does not trigger some or all of the consequences which flow from the disqualification itself. To hold otherwise would be to blur or efface the distinction between the institution of a disqualification petition against a member of the House and the disqualification of that member. A claim that something is true does not mean that it is actually true. A claim must be established according to the procedure established by law before it can be considered to be a fact. When a petition for disqualification under the Tenth Schedule is filed before the Speaker, the party who filed the petition asserts that the respondent in the petition has contravened the provisions of the Tenth Schedule. This averment must be tested on the anvil of evidence before the Speaker, who acts as a Tribunal under the Tenth Schedule. Article 164(1B) is therefore triggered only when the Speaker returns a verdict finding that the member of the House in question has breached Paragraph 2 of the Tenth Schedule. If the Speaker finds that Mr. Shinde is disqualified, he will no longer be eligible to hold the post of Chief Minister for the duration specified in Article 164(1B).

                         Relying on Rajendra Singh Rana (supra), this Court rejected this submission and held that the Speaker has the jurisdiction to determine the disqualification petitions because disqualification relates to the date when the act constituting defection is alleged to have been committed. The decision in Shrimanth Balasaheb Patil (supra) applied the principle that disqualification relates to the date on which the act of defection takes place to mean that acts or events subsequent to the commission of the conduct prohibited under the Tenth Schedule, do not have an exculpatory effect. In other words, subsequent acts or events do not have the effect of curing such conduct or releasing the actor from the consequences which follow. This is consistent with the decision in Rajendra Singh Rana (supra). Mr. Shinde’s appointment is therefore not barred by Article 164(1B) of the Constitution.  


  1. Also, the Hon’ble Supreme Court held that the Governor did not exceed the scope of his authority because the BJP returned one hundred and six candidates to the Maharashtra Legislative Assembly, the highest amongst all political parties. It formed the primary opposition party in the House. By a letter dated 30 June 2022, the then Leader of Opposition, Mr. Fadnavis, wrote to the Governor claiming that one hundred and six MLAs of the BJP extend their support to Mr. Eknath Shinde for the formation of a government headed by Mr. Shinde. Eight independent candidates also extended their support to a government helmed by Mr. Shinde. On the same day, Mr. Shinde wrote to the Governor seeking to be called to form the Government. Based on the material before him, that is, the communications received, the Governor invited Mr. Shinde to take the oath of office, and directed him to prove his majority on the floor of the House within a period of seven days. The post of the Chief Minister of the State of Maharashtra fell vacant after the resignation of Mr. Thackeray on 29 June 2022. The leader of the party that had returned the highest number of candidates to the State Assembly extended support on behalf of the party to Mr. Shinde. Thus, PART F 139 the decision of the Governor dated 30 June 2022 inviting Mr. Shinde to form the Government was justified. 



    OLQ is a Pan-India basis law firm connecting legal expertise nationwide.

    WRITTEN BY: PRATIKSHA SWAIN

    GUIDED BY: ADVOCATE ANIK


Rounded Image

Submit Comment