Today, a Constitution Bench of the Supreme Court handed down a unanimous judgment with respect to what has commonly come to be known as the “Maharashtra political crisis” (Subhash Desai vs Principal Secretary). To cast the facts as neutrally as possible, recall that last June, there was an internal rebellion within the Shiv Sena party, which – in turn – was part of the ruling MVA coalition in Maharashtra. A breakaway set of MLAs, led by Eknath Shinde, claimed to be the “real” Shiv Sena. A number of things then happened: the Speaker (or, to be precise, at the time, the Deputy Speaker) issued disqualification notices against the Shinde faction, which – in turn – moved notices for the Deputy Speaker’s removal; rival whips were appointed; the Governor intervened, and ordered a floor test while the disqualification petitions were pending. Two of the disputes ended up before a vacation bench of the Supreme Court. The Supreme Court passed two interim orders. One of them extended the time for the breakaway MLAs to respond to the disqualification notices; the other interim order declined to stop the floor test. Before the floor test could happen, the-then Chief Minister Uddhav Thackeray resigned. The Governor then invited Eknath Shinde to become Chief Minister, which he did, with the support of the Bharatiya Janta Party. Legal proceedings continued in various forums: for example, a few months later, the Election Commission recognised the “Shinde faction” as the “real Shiv Sena” – a decision that was immediately challenged before the Supreme Court. As of today – the date of the judgment – that status quo continues.

The Constitution Bench was asked to adjudicate a series of questions arising out of this factional conflict, which it did: these issues pertained – among other things – to the Tenth Schedule, to the powers of the Speaker, to the appointment of the whip, to the role of the Election Commission, and much else. In succeeding posts, we shall examine some of these issues. In this opening post, however, I want to take a step back, and take a look at the Court’s core holding with respect to the dispute before it. The Court found that the Governor’s action to call for a floor test was illegal, but because Uddhav Thackeray resigned before facing the test, his government could not now be restored; consequently, status quo would continue.

Let me begin by noting one thing: in my view, the Constitution Bench was correct in holding that it could not now quash Uddhav Thackeray’s resignation, and – therefore – correct in the outcome. The problem, however, is that this does not tell the whole story. The part that is missing is that it was an order of a different bench of the Court itself that created the situation which this bench of the Court then found impossible to resolve when it was adjudicating the main case.

In June 2022, the vacation bench of the Supreme Court (headed by Surya Kant J) passed two interim orders, as observed above. The first order extended the time that had been granted to the Shinde faction MLAs to respond to the disqualification notices pending against them. The second order refused to stay the Governor-ordered floor test. As pointed out at the time, the twin effect of these two judicial orders was that the Shinde faction was free to disobey the whip and vote to bring down Uddhav Thackeray’s government, without facing the fear of immediate disqualification: in other words, with one interim order, the Court granted Shinde faction immunity from disqualification, and with the other, authorised the floor test (in which those very immunised MLAs were now free to vote against Thackeray). It would be disingenuous to separate Uddhav Thackeray’s decision to resign from this judicially-created context.

Now, with respect to the extension of time for the disqualification notices, the Constitution Bench finds nothing wrong with it, and indeed, consonant with the principles of natural justice. Fair enough. What the Constitution Bench also finds, however, is that the Governor’s order for a floor test was illegal – indeed, clearly illegal, as – and the Constitution Bench notes this in some detail – the Governor had absolutely no objective material to reasonably suspect a loss of majority in the House. The circumstances under which the Governor could pass such an order forcing a floor test – i.e., say, when the government is attempting to circumvent a no-confidence motion by infinitely proroguing the House – were simply not present.

What does this mean? It means that the vacation bench’s interim order authorising the floor test to go ahead was very clearly wrong. The vacation bench had before it exactly the same material that the Constitution Bench had. The Constitution Bench found absolutely no difficulty in finding that the Governor had no objective material before him justifying calling for a floor test. But if this was indeed the case, then it was surely also the case in June, and in that event, the vacation bench was grossly in error in not staying the Governor’s (illegal) order, and authorising the floor test. Obviously, it is not my claim here that the standards for a stay and the standard for a final holding are the same: what is clear, however, is that the Constitution Bench found illegal a process that the vacation bench – in its interim order – explicitly allowed to proceed.

As I have said above, Uddhav Thackeray’s decision to resign cannot be divorced from this judicially-created reality. Indeed, by holding today that the Governor’s order was illegal but also that Uddhav Thackeray might have gotten relief had he faced the floor test, what effectively follows is that Uddhav Thackeray is paying the price for refusing to participate in an illegal proceeding. We have heard of people being hoist on their own petard, but Uddhav Thackeray here seems to have been hoist on someone else – i.e., the vacation bench’s – petard!

To use a somewhat imperfect analogy from cricket: imagine this situation. There are two balls left in the match, and the chasing team needs to score four runs to win. The ball is bowled, and there’s a stumping appeal. The umpire sends it upstairs. While the third umpire is still looking, the umpire orders the bowler to bowl the next ball. The batter who may or may not have been stumped hits a four. The umpire declares the winner. Now, after all this is done, the third umpire finds that the batter had actually been stumped, but because the bowling team did not refuse to bowl the last ball, it is now too late to do anything about it. Arguably, you cannot fault the third umpire’s decision; however, there has clearly been a failure of umpiring.

And this is the crux: arguably, today’s Constitution Bench was right in the outcome; but just as much as today’s Constitution Bench is a part of the Supreme Court, so was the vacation bench who passed those two interim orders in June 2022. We cannot fault these five judges, because they did not write those two interim orders; we can even say that the two judges who did write those interim orders placed these five in an absolutely impossible situation, where no answer would have done justice. The ‘original sin’ – so to say – lay in those interim orders, which tainted everything that followed. But if every bench of the Supreme Court speaks for the Court, then ultimately, what we have, is a failure of justice per se.

Indeed, what is striking is that even as the Constitution Bench holds that the Governor’s order of the floor test was illegal, it makes no mention of the fact that this order was sanctified by the vacation bench in refusing to stay it. Mourid Barghouti once memorably wrote: “… it is easy to blur the truth with a simple linguistic trick: start your story from secondly.” To treat Uddhav Thackeray’s resignation as the beginning of the story is to begin with “secondly.” Of course, one can understand why the Constitution Bench would have to begin the story with “secondly”: it can hardly condemn what its own past self has done, in the same proceeding. And that is why it falls to the critic to complete the story, and that is what has been the task of this blog post.