The Supreme Court delivered a bizarre ruling where it deemed the ouster of Maharashtra CM Uddhav Thackeray to be illegal—but blamed Thackeray for his fall. Many experts point out that the real culprit is the Court itself—which once again made no attempt to redress the injustice.
Researched by: Rachel John
First, a ‘maha’ refresher
Here’s a recap of what happened to the Thackeray-led Shiv Sena government in 2022:
- In 2019, the BJP and Shiv Sena alliance scored a comfortable 161 seats in the Assembly elections. But Sena chief Uddhav Thackeray demanded a rotating gaddi—where the two parties would get the CM post for 2.5 years each.
- When the demand was rejected by BJP CM Devendra Fadnavis, Thackeray crossed Hindutva lines to align himself with the NCP and Congress. BJP was pushed out, and Thackeray became the new CM, leading the Maha Vikas Aghadi coalition—after extended legal wrangling.
- All seemed fine until the Shiv Sena flubbed the Rajya Sabha elections—and polls for the upper house in Maharashtra on June 20, 2022.
- On the very same day, senior Sena leader Eknath Shinde fled to Gujarat with a posse of MLAs—and then on to Guwahati—under the protection of the BJP.
- By the end, Shinde claimed the support of 40 rebel MLAs—three more than the minimum required to dodge penalties as per the anti-defection laws.
Enter, the Supreme Court: Two key appeals were heard by a vacation bench—filed by Shinde and Thackeray, respectively.
One: Eknath Shinde challenged the disqualification notices issued to 16 MLAs—including Shinde—by then Deputy Speaker Narhari Sitaram Zirwal. On June 27, the Court granted him a reprieve of 12 days. On June 28, the Shinde faction and BJP leader Devendra Fadnavis asked Governor Bhagat Singh Koshiyari to call for a floor test in the Assembly to prove Thackeray's majority. Koshiyari scheduled the floor test for June 30—conveniently within the 12-day deadline—allowing the Shinde MLAs to cast a vote.
Two: Thackeray filed an appeal in the Supreme Court—arguing that there was no legal basis for the governor to call a floor test. On June 29, the same bench refused to block a floor test, blithely claiming: “Suppose if we find later that the floor test was conducted without authority, we can annul it. It is not an irreversible situation.”
The result: Thackeray resigned his CM post on the very same day—ahead of a floor test that he was sure to lose. Almost immediately, the governor invited Shinde to form the government—with BJP support. He was sworn in as Chief Minister on June 30—and Fadnavis took his oath as Deputy CM.
Why is the Court looking at this now?
Soon after his ouster, the Thackeray camp filed another petition challenging the appointment of Shinde as CM. Meanwhile, the Shinde camp challenged the legality of the disqualification notices against its MLAs. These petitions were clubbed together and referred to a Constitution Bench in August 2022—to consider ten separate issues raised by the course of events in Maharashtra. The five-judge bench—led by Chief Justice DY Chandrachud—delivered its verdict yesterday.
Point to note: This case represents the last remaining hope of Uddhav Thackeray—who has lost 39 of his MLAs and even the name of his party. In February, the Election Commission recognised the Shinde faction as the original Shiv Sena—giving its rights over the name and the bow and arrow symbol. FYI: a Chandrachud-led Supreme Court bench refused to stay the EC’s actions, as well.
And what did the Court say?
The five-judge bench offered Thackeray a “moral victory” and not much else. Here are the key points of the judgement:
One: The governor’s decision to call for a floor test was illegal. The reason: there was no indication that the Thackeray government had lost its majority at that time:
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 bench also slammed Koshiyari for playing politics:
He cannot exercise a power that is not conferred on him by the Constitution or a law made under it… 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.
Two: The Court, however, refused to reinstate the Thackeray government. The reason: he resigned instead of taking the floor test—to prove his majority. The bench declared:
This court cannot quash a resignation that has been submitted voluntarily. Had Mr Thackeray refrained from resigning from the post of the chief minister, this court could have considered the grant of the remedy of reinstating the government headed by him.
And once he resigned, Koshiyari was justified in inviting Shinde to form the government—since he had the support of the BJP—which was the largest single party in the Assembly.
Three: The Court refused to rule on the Election Commission’s decision to recognise the Shinde faction as the true Shiv Sena.
Four: The Shinde faction had challenged the disqualification of its MLAs by the Deputy Speaker Narhari Zirwal (there was no Speaker at the time). Its argument: the Shinde faction had already demanded Zirwal’s disqualification. Since his status was uncertain, how could he have the power to disqualify their MLAs? The Court kicked this can down the road—referring it to a larger seven-judge Constitution Bench.
So that’s it? It was illegal but too bad?
Yes, that pretty much sums it up. Here’s a sampling of what legal experts have to say.
One: Advocate Sanjay Ghosh offered this hilarious but apt analogy to explain what the Court did:
Udham was on way to the Marriage Hall to marry Shindy when he received news that a local goonda Mota had abducted poor Shindy. He rushed to the Village Sarpanch for justice. Sarpanch said “wait, let the action finish. I am always there”. Months later Sarpanch held called panch meeting. Heard all and said and made the right noises. Then said: “see Udham u should have gone to the Hall even though u knew the bride has been whisked off. As you did not go I am unable to help you!”
Two: Constitutional expert Gautam Bhatia says the Court was correct in saying that it cannot undo Thackeray’s resignation. But it also refused to acknowledge its own role (albeit of a different set of judges) in forcing Thackeray to resign. Pointing to the twin orders issued by the vacation bench, he writes:
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.
And he points out that Thackeray ‘chose’ to resign because—by the Court’s own admission—the vacation bench made a terrible error by greenlighting an illegal floor test:
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!
Bhatia also offers an equally apt cricketing analogy—which you may want to check out.
Three: Other experts disagree with Bhatia—arguing that the Court should have restored the Thackeray government:
[T]he floor test convening itself was unconstitutional. And after that Uddhav Thackeray resigned. Therefore, the status quo ante should have been maintained from the day the Governor called for floor test. This means from the time the Governor called the floor test which was unconstitutional, the situation that existed before that it should be reinstated.
As one retired judge puts it: “When the Supreme Court has termed the then Governor’s action of calling the floor test as illegal, then how can the government be legal?”
The bottomline: Reacting to the verdict, Chief Minister Eknath Shinde said: "Satyamev jayate.” Gandhi-ji is spinning in his grave.
Reading list
The Telegraph has the best and clearest overview of the judgement. This Indian Express piece argues the verdict is a morale booster for Thackeray—and his NCP and Congress allies. For a legal take on the judgement, read Gautam Bhatia and this Indian Express report. The Hindu looks at the convoluted issue of the party Whip—which also affected the likely outcome of the floor test. Also in The Hindu: extended quotes from the ruling—which tacitly acknowledged the role of the previous bench. This Big Story has all the details of Thackeray’s ouster.
