SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF MAHARASHTRA & ORS.
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- Court
- Supreme Court of India
- Decided
- Bench
- DR. DHANANJAYA Y CHANDRACHUD (CJI), M. R. SHAH, KRISHNA MURARI, HIMA KOHLI and PAMIDIGHANTAM SRI NARASIMHA
- Citation
- [2023] 8 S.C.R. 857
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Headnote — Supreme Court Reports (editorial summary, not part of the judgment)
Catchwords
Constitution of India: Art.191(2) – Maharashtra Legislative Assembly Rules – r.95 – Coalition Government – Split in Political Party – Losing Confidence of the House – Power of the Governor to call for Floor Test – After the State elections in 2019, a coalition government of Maha Vikas Agadi (MVA) [a post-poll alliance of Shiv Sena, Nationalist Congress Party (NCP), Indian National D Congress (INC) and some independent MLAs] was formed in Maharashtra, with Mr. Thackeray of Shiv Sena as the Chief Minister – However, certain events transpired in mid-2022 which led to split in Shiv Sena into two factions, one led by Mr. Thackeray and the other led by Mr. Shinde – 34 Shiv Sena MLAs (of Shinde Group) E issued notice to Deputy Speaker stating that he no longer enjoyed their support and calling upon him to move a motion for his own removal – In the meanwhile, notices were issued by the Deputy Speaker on petition filed by the Chief Whip of petitioners (Thackeray Group) under Tenth Schedule to the Constitution for disqualification of MLAs of Shinde Group – Governor, pursuant to letter addressed by the Opposition Party, called upon the Thackeray Group to prove majority on the floor of the House – Thackeray resigned on the very next day and thereafter a new Govt. was formed by a coalition consisting of BJP MLAs and rebel MLAs of Shiv Sena, with Mr. Shinde as the Chief Minister –Discretion and power of governor to invite a person to form the Government – Extent of –
Held
The discretion to call for a floor test is not an unfettered discretion but one that must be exercised with circumspection, in accordance with the limits placed on it by law – The Governor had no objective material on the basis of which he could doubt the confidence of the H 857
A incumbent government – The resolution on which the Governor relied did not contain any indication that the MLAs wished to exit from the MVA government – Communication expressing discontent on the part of some MLAs is not sufficient for the Governor to call for a floor test – The Governor ought to apply his mind to the communication or other material before him to assess whether the B Government seemed to have lost the confidence of the House – The 34 Shiv Sena MLAs did not express their desire to withdraw support from the MVA Government in the resolution – The floor test cannot be used as a medium to resolve internal party disputes or intra party disputes – 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, exercise of discretion by the Governor in this case was not in accordance with law – The Governor was not justified in calling upon Mr. Thackeray to prove his majority on the floor of the House because he did not have reasons based on objective material before him, to reach the conclusion that Mr. Thackeray had lost the confidence of the House – However, the status quo ante cannot be restored because Mr. Thackeray did not face the floor test and tendered his resignation – The Governor was justified in inviting Mr. Shinde to form the government. E Constitution of India – Art.153 – Position of Governor – In Internal Disputes of a Political Party – Split in Political Party –
Held
The Governor is the titular head of the State Government – He is a constitutional functionary who derives his authority from the Constitution and he cannot exercise a power that is not conferred on him by the Constitution or a law made under it – Neither the Constitution nor the laws enacted by Parliament provide for a mechanism by which disputes amongst members of a particular political party can be settled – 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.
Catchwords
Constitution of India: Tenth Schedule and Arts.32 & 226 – Power and Jurisdiction of Court – To adjudicate upon Disqualifications of Legislative Members –
Held
Disqualification of a person for being a member of the House has drastic consequences for the member concerned and by extension, for the citizens of that constituency – Supreme Court should normally refrain
Catchwords
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 859 MAHARASHTRA from deciding disqualification petitions at the first instance, having due regard to constitutional intendment – The question of disqualification ought to be adjudicated by the constitutional authority concerned, namely the Speaker of the Legislative Assembly, by following the procedure prescribed – The Speaker must decide disqualification petitions within a reasonable period. B Constitution of India: Art.181 – Reference to Larger Bench – Whether a notice for removal of a Speaker restricts them from continuing with disqualification proceedings under Tenth Schedule as held by this Court in Nabam Rebia –
Held
Although the decision in Nabam Rebia is not applicable to the factual scenario, however, Nabam Rebia is in conflict with the judgement in Kihoto Hollohan – It appears that the majority in Nabam Rebia did not consider the effect and import of Article 181 of Constitution of India – Hence, the decision in Nabam Rebia merits reference to a larger Bench because a substantial question of law remains to be settled.
Catchwords
Constitution of India: Tenth Schedule – Maharashtra D Legislative Members (Removal of Disqualification) Act, 1956 – s.23 – Maharashtra Legislative Assembly (Disqualification on Ground of Defection) Rules 1986 – Rule 3(1)(a) & 6 – Appointment of Whip – Difference between Political Party and Legislature Party –
Held
The political party and not the legislature party appoints the Whip and the Leader – The Tenth Schedule would become unworkable if the term ‘political party’ is read as the ‘legislature party’ – A clear demarcation is made between political party and legislature party for the purpose of a merger under Paragraph 4 – To read the term ‘political party’ as ‘legislature party’ would be contrary to the plain language of the Tenth Schedule – Direction to vote in a particular manner or to abstain from voting is issued by the political party and not the legislature party – The Speaker must recognize the Whip and the Leader who are duly authorised by the political party after conducting an enquiry in this regard.
Catchwords
Constitution of India – Arts. 189(2) and 190(3) – Decision of G Speaker – Disqualification of Member – Validity of Proceedings of the Legislature –
Held
An MLA has the right to participate in proceedings of the House regardless of the pendency of any petitions for their disqualification – Validity of proceedings of the House in the interregnum is not “subject to” outcome of the disqualification
A petitions – Decision of the Speaker does not relate back to the date when the MLA indulged in prohibitory conduct – The decision of the Speaker and the consequences of disqualification are prospective – If a member incurs disqualification under the Tenth Schedule, it does not automatically result in their expulsion from the political party to which they belong. B Constitution of India – Tenth Schedule – Election Symbols (Reservation and Allotment) Order, 1968 – Para 15 –
Held
The Speaker and the ECI are empowered to concurrently adjudicate on the petitions before them under the Tenth Schedule and under Paragraph 15 of the Symbols Order respectively.
Catchwords
Election Symbols (Reservation and Allotment) Order, 1968 – Para 15 –
Held
While adjudicating petitions under Paragraph 15 of the Symbols Order, the ECI may apply a test that is best suited to the facts and circumstances of the case before it.
Catchwords
Constitution of India – Tenth Schedule – Para 2(1) and Para D 3 –Deletion of Paragraph 3 of the Tenth Schedule – Effect of –
Held
Is that the defence of ‘split’ is no longer available to members facing disqualification proceedings – The Speaker would prima facie determine who the political party is for the purpose of adjudicating disqualification petitions under Paragraph 2(1) of the Tenth E Schedule, where two or more factions claim to be that political party – When there are two Whips appointed by two or more factions of the political party, the Speaker decides which of the two Whips represents the political party Constitution of India – Tenth Schedule – Para 2 & 3 – Election F Symbols (Reservation and Allotment) Order, 1968 – Para 15 – Determination of, by Election Commission of India – Which group constitutes the political party – Allotment of Symbol – Held: The test of majority in the legislative and organisational wings of the party is not the only or primary test – The ECI is free to fashion a test suited to the facts and complexities of the specific case before it G – In some cases, it is futile to assess which group enjoys a majority in the legislature – Other tests include an evaluation of the majority in the organisational wings of the political party, an analysis of the provisions of the party constitution, or any other appropriate test – ECI to refrain from passing a subjective judgment on the approaches preferred by rival factions by applying the test of whether rival
Catchwords
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 861 MAHARASHTRA groups are adhering to the aims and objects of the party as incorporated in its constitution – Decision of ECI need not be consistent with the decision of the Speaker – Decision of the ECI has prospective effect – Disqualification proceedings before the Speaker cannot be stayed in anticipation of the decision of the ECI. B Constitution of India – Art.164(1B) – Appointment of Chief Minister – Pending disqualification petitions –
Held
Disqualification is triggered only if disqualification incurred under the Tenth Schedule – Mere institution of a disqualification petition does not trigger some or all of the consequences which flow from the disqualification itself. C Disposing of the Writ Petitions, the Court HELD: 1.1 The decision in Nabam Rebia merits reference to a larger Bench because a substantial question of law remains to be settled. To give quietus to the issue, the following question D (and any allied issues which may arise) are referred to a larger Bench: whether the issuance of a notice of intention to move a resolution for the removal of the Speaker restrains them from adjudicating disqualification petitions under the Tenth Schedule of the Constitution. [Para 70 & 71][907-F; 908-F-G] 1.2 This Court should normally refrain from deciding disqualification petitions at the first instance, having due regard to constitutional intendment. The question of disqualification ought to be adjudicated by the constitutional authority concerned, namely the Speaker of the Legislative Assembly, by following the procedure prescribed. Disqualification of a person for being F a member of the House has drastic consequences for the member concerned and by extension, for the citizens of that constituency. Therefore, any question of disqualification ought to be decided by following the procedure established by law. Absent exceptional circumstances, the Speaker is the appropriate authority to adjudicate petitions for disqualification under the Tenth Schedule. G The Speaker is expected to act fairly, independently, and impartially while adjudicating the disqualification petitions under the Tenth Schedule. Ultimately, the decision of the Speaker on the question of disqualification is subject to judicial review. Therefore, the Speaker of the Maharashtra Legislative Assembly
Reporter's headnote (continued) and case details
857
(Writ Petition (C) No. 493 of 2022)
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A is the appropriate constitutional authority to decide the question of disqualification under the Tenth Schedule. [Para 80 & 85][912- G, H; 916-A-B] 1.3 The plain meaning of the provisions of the Tenth Schedule, 1986 Rules, and Act of 1956 indicate that the Whip B and the Leader must be appointed by the political party. To hold that it is the legislature party which appoints the Whip would be to sever the figurative umbilical cord which connects a member of the House to the political party. It would mean that legislators could rely on the political party for the purpose of setting them up for election, that their campaign would be based on the strengths (and weaknesses) of the political party and its promises and policies, that they could appeal to the voters on the basis of their affiliation with the party, but that they can later disconnect themselves entirely from that very party and be able to function as a group of MLAs which no longer owes even a hint of allegiance to the political party. This is not the system of governance that is envisaged by the Constitution. In fact, the Tenth Schedule guards against precisely this outcome. That a Whip be appointed by the political party is crucial for the sustenance of the Tenth Schedule. The entire structure of the Tenth Schedule which is built on political parties would crumble if this requirement is not complied with. It would render the provisions of the Tenth Schedule otiose and have wider ramifications for the democratic fabric of this country. Thus, the Courts cannot be excluded by Article 212 from inquiring into the validity of the action of the Speaker recognizing the Whip. [Para 111, 113 & 114][932-H; 933-D-G; 934-A] F 1.4 The decision of the ECI under Symbol Order has prospective effect. A declaration that one of the rival groups is that political party takes effect prospectively from the date of the decision. In the event that members of the faction which has been awarded the symbol are disqualified from the House by the Speaker, the members of the group which continues to be in the G House will have to follow the procedure prescribed in the Symbols Order and in any other relevant law(s) for the allotment of a fresh symbol to their group. The disqualification proceedings before the Speaker cannot be stayed in anticipation of the decision of the ECI. In cases where a petition under Paragraph 15 of the H Symbols Order is filed after the (alleged) commission of
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 863 MAHARASHTRA prohibitory conduct, the decision of the ECI cannot be relied A upon by the Speaker for adjudicating disqualification proceedings. If the disqualification petitions are adjudicated based on the decision of the ECI in such cases, the decision of the ECI would have retrospective effect. This would be contrary to law. [Para 155 & 156][948-B-E] B 1.5 The Governor had no objective material on the basis of which he could doubt the confidence of the incumbent government. The resolution on which the Governor relied did not contain any indication that the MLAs wished to exit from the MVA government. The communication expressing discontent on the part of some MLAs is not sufficient for the Governor to call for a floor test. The Governor ought to apply his mind to the communication (or any other material) before him to assess whether the Government seemed to have lost the confidence of the House. The term ‘opinion’ is used to mean satisfaction based on objective criteria as to whether he possessed relevant material, and not to mean the subjective satisfaction of the Governor. Once a government is democratically elected in accordance with law, there is a presumption that it enjoys the confidence of the House. There must exist some objective material to dislodge this presumption. The Governor is the titular head of the State Government. He is a constitutional functionary who derives his authority from the Constitution. This being the case, the Governor must be cognizant of the constitutional bounds of the power vested in him. He cannot exercise a power that is not conferred on him by the Constitution or a law made under it. Neither the Constitution nor the laws enacted by Parliament provide for a F mechanism by which disputes amongst members of a particular political party can be settled. 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. It follows from this that the Governor cannot act upon an inference that he has drawn that a section of the Shiv Sena wished to G withdraw their support to the Government on the floor of the House. [Para 186 & 189][959-C-E; 960-A-C]
2. In view of the discussion above, it is concluded as follows: (a) The correctness of the decision in Nabam Rebia is referred H
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A to a larger Bench of seven judges; (b) This Court cannot ordinarily adjudicate petitions for disqualification under the Tenth Schedule in the first instance. There are no extraordinary circumstances in the instant case that warrant the exercise of jurisdiction by this Court to adjudicate disqualification petitions. The Speaker must decide disqualification petitions within a reasonable period; B (c) An MLA has the right to participate in the proceedings of the House regardless of the pendency of any petitions for their disqualification. The validity of the proceedings of the House in the interregnum is not “subject to” the outcome of the disqualification petitions; (d) The political party and not the C legislature party appoints the Whip and the Leader of the party in the House. Further, the direction to vote in a particular manner or to abstain from voting is issued by the political party and not the legislature party. The decision of the Speaker as communicated by the Deputy Secretary to the Maharashtra Legislative Assembly dated 3 July 2022 is contrary to law. The D Speaker shall recognize the Whip and the Leader who are duly authorised by the Shiv Sena political party with reference to the provisions of the party constitution, after conducting an enquiry in this regard and in keeping with the principles discussed in this judgement; (e) The Speaker and the ECI are empowered to concurrently adjudicate on the petitions before them under the Tenth Schedule and under Paragraph 15 of the Symbols Order respectively; (f) While adjudicating petitions under Paragraph 15 of the Symbols Order, the ECI may apply a test that is best suited to the facts and circumstances of the case before it; (g) The effect of the deletion of Paragraph 3 of the Tenth Schedule is that the defence of ‘split’ is no longer available to members facing disqualification proceedings. The Speaker would prima facie determine who the political party is for the purpose of adjudicating disqualification petitions under Paragraph 2(1) of the Tenth Schedule, where two or more factions claim to be that political party; (h) The Governor was not justified in calling upon Mr. Thackeray to prove his majority on the floor of the House because he did not have reasons based on objective material before him, to reach the conclusion that Mr. Thackeray had lost the confidence of the House. However, the status quo ante cannot be restored because Mr. Thackeray did not face the floor test and H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 865 MAHARASHTRA tendered his resignation; and (i) The Governor was justified in A inviting Mr. Shinde to form the government. [Para 206][966-F- H; 967-A-H; 968-A-B] Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1 : [2016] 6 SCR 1 – referred to larger bench. B Rajendra Singh Rana v. Swami Prasad Maurya (2007) 4 SCC 270 : [2007] 2 SCR 591 and Speaker, Haryana Vidhan Sabha v. Kuldeep Bishnoi, (2015) 12 SCC 381 : [2012] 10 SCR 672 – held inapplicable. C Kihoto Hollohan v. Zachillhu (1992) Supp (2) SCC 651 : [1992] 1 SCR 686 and Shrimanth Balasaheb Patil v. Speaker, Karnataka Legislative Assembly (2020) 2 SCC 595 : [2019] 16 SCR 886 – relied on. Ramdas Athawale v. Union of India,(2010) 4 SCC 1: D [2010] 3 SCR 1059 – explained. Special Reference No. 1 of 1964 (Powers, Privileges and Immunities of State Legislatures) AIR 1965 SC 745 : [1965] 1 SCR 413; SR Bommai v. Union of India (1994) 3 SCC 1 : [1994] 2 SCR 644; Mayawati v. Markandeya E Chand (1998) 7 SCC 517 : [1998] 2 Suppl. SCR 204; Sadiq Ali v. Election Commission of India (1972) 4 SCC 664 : [1972] 2 SCR 318; Raja Ram Pal v. Hon’ble Speaker, Lok Sabha (2006) 2 SCC 1 : [2006] 1 SCR 562; Rameshwar Prasad v. Union of India (2007) 3 SCC 184 : [2007] 1 SCR 317; Indore F Development Authority v. Manohar Lal (2020) 8 SCC 129 : [2020] 3 SCR 1 Pratap Gouda Patil v. State of Karnataka (2019) 7 SCC 463; Shivraj Singh Chouhan v. Union of India (2020) 17 SCC 1 : [2020] 9 SCR 787; Kshetrimayum Biren Singh v. Hon’ble Speaker, Manipur G Legislative Assembly (2022) 2 SCC 759; Keisham Meghachandra Singh v. Hon’ble Speaker Manipur Legislative Assembly (2020) SCC OnLine SC 55; Justice KS Puttaswamy v. Union of India (Aadhar 5J) (2019) 1 SCC 1 : [2018] 8 SCR 1; Rojer Mathew v. South Indian Bank Ltd. (2020) 6 SCC 1 : [2019] H
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A 16 SCR 1; State of UP v. Desh Raj, (2007) 1 SCC 257 : [2006] 9 Suppl. SCR 352; Kuldip Nayar v. Union of India (2006) 7 SCC 1 : [2006] 5 Suppl. SCR 1; Delhi Admn. v. Gurdip Singh Uban, (2000) 7 SCC 296 : [2000] 2 Suppl. SCR 496 and Taxi Owners United Transport v. State Transport Authority (Orissa), (1983) 4 SCC 34 – B referred to. Case Law Reference [2016] 6 SCR 1 referred to larger bench Para 32(a) [1992] 1 SCR 686 relied on Para 35(a) C [2007] 2 SCR 591 held inapplicable Para 35(e) [1998] 2 Suppl. SCR 204 referred to Para 40(b)(i) [2006] 1 SCR 562 referred to Para 40(b)(vi) [2007] 1 SCR 317 referred to Para 40(f)(iii) D [2020] 3 SCR 1 referred to Para 41(a)(i) [1994] 2 SCR 644 referred to Para 41(e) [1972] 2 SCR 318 referred to Para 42(d) (2019) 7 SCC 463 referred to Para 43(c) [2012]10 SCR 672 held inapplicable Para 43(c) E [2020] 9 SCR 787 referred to Para 44(b) (2022) 2 SCC 759 referred to Para 45(b) [2019] 16 SCR 886 relied on Para 83 [1965] 1 SCR 413 referred to Para 96 F [2018] 8 SCR 1 referred to Para 96 [2019] 16 SCR 1 referred to Para 96 [2006] 9 Suppl. SCR 352 referred to Para 97 [2010] 3 SCR 1059 explained Para 101 G [2006] 5 Suppl. SCR 1 referred to Para 112 (1983) 4 SCC 34 referred to Para 166 CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No.493 of 2022. H (Under Article 32 of The Constitution of India)
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 867 MAHARASHTRA
With A Writ Petition (C) Nos.469, 468, 470, 479 And 538 of 2022. Tushar Mehta, SG, Kapil Sibal, Dr. Abhishek Manu Singhavi, Devadatt Kamat, Neeraj Kishan Kaul, Maninder Singh, Siddharth Bhatnagar, Harish Salve, Mahesh Jethmalani, Ms. Malvika Trivedi, Sr. Advs., Amit Anand Tiwari, Rohit Sharma, Rajesh Inamdar, Javedur B Rahman, Nizam Pasha, Anish R. Shah, Harsh Pandey, Revanta Solanki, Amit Bhandari, Sunny Jain, Nishant Patil, Ms. Devyani Gupta, Ms. Tanvi Anand, Ms. Aprajita Jamwal, Dharmendra Mishra, Siddharth Kaushik, Nikhil Purohit, Ashok Kumar, Siddharth Seem, L. Nidhiram Sharma, Aman Sharma, Ashima Chauhan Singh, Mudassir, Abhikalp C Pratap Singh, Abhay Anturkar, Prabhas Bajaj, Dhruv Sharma, Ms. Ira Mahajan, Raghav Agrawal, Toshiv Goyal, Ms. Manmeet Kaur Sareen, Navneet R, Ms. Shreya Saxena, Ms. Yamini Singh, Ms. Pritha Suri, Rangsaran Mohan, Ramchandran Madan, Ms. Vijetha Ravi, Ajay Sabharwal, Chirag Shah, Utsav Trivedi, Ravi Sharma, Himanshu Sachdeva, Ms. Manini Roy, Ms. Shivani Bhushan, Nihar Thackeray, D Ms. Ira Mahajan, Dhruv Sharma, Raghav Agarwal, Ms. Mugdha Pande, Ajay Awasthi, Prabhash Bajaj, Piyush Tiwari, Ms. Shrishti Kumar, Kumar Sumit, Ms. Chaitali Jugran, Ms. Kanjani Sharma, Ms. Pracheta Kar, Aditya Sidhra, Nadeem Afroz, Ms. Sujal Gupta, Wedo Khalo, Anjani Kumar Rai, Biswaksen Panda, M/s. Tas Law, Kanu Agrawal, Madhav E Sinhal, Arvind Kumar Sharma, Ms. Ajay Sabharwal, Pai Amit, Ms. Pankhuri Bhardwaj, Ms. Ranu Purohit, Ms. Bhavana Duhoon, Abhiyudaya Vats, Ms. Astha Prasad, Ms. Rukmini Bobde, Ms. Trishala Trivedi, Ankit Ambasta, Chirag Gupta, Ajit Pravin Wagh, Aaditya Aniruddha Pande, Bharat Bagla, Sourav Singh, Ankit Yadav, Ms. Prakriti Rastogi, Asim Sarode, Ms. Shriya Awale, Ms. Smita Singalkar, Ashok F Kumar Gupta Ii, Pradeep Kumar Gupta, Kailash Prashad Pandey, Mahendra Kawchale, Vijay Pal, Pramod Kumar Singh, Kundal Lal, Anil Kumar, Umang Tripathi, Deepankar, Om Prakash, Ms. Rekha Agarwal, Karunesh Kumar Shukla, Amit Garg, Sadashiv, Dr. AP Singh, VP Singh, Ms. Richa Singh, Ms. Geeta Chauhan, Sharwan Kumar Goyal, G Dr. Gunratan Sadavarte, Pankaj Kumar Singh, Pawan Kumar Shukla, S. C. Tripathi, Mukesh Verma, Kamal Kumar Pandey, Gaurav Belsare, Raj Singh Rana, T. R. B. Sivakumar, Shreyas Gacche, Rajsaheb Patil, Ms. Supriya Wankhede, Advs. for the appearing parties.
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Judgment
Footnotes
Footnotes
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 869 MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]
Footnotes
a. The purpose of the Tenth Schedule and the effect of disqualification .................................................. 98 b. The purpose of the Symbols Order and the effect of the decision under Paragraph 15 .................... 100 C c. The test(s) applicable to disputes under Paragraph 15 of the Symbols Order ................................ 104 d. The potential for complications in the present case ................................................................ 107 D e. Harmonising the Tenth Schedule with Paragraph 15 of the Symbols Order ..................................... 109 vi. The impact of the deletion of Paragraph 3 of the Tenth Schedule ................................ 114 E a. The defence of a ‘split’ is no longer available to members who face disqualification proceedings ..................................................... 118 b. The decision of the Speaker under Paragraph 2 of the Tenth Schedule .......................................... 119 F vii. The exercise of discretion by the Governor in directing Mr. Thackeray to face a floor test .................................................................121 a. The power of the Governor to call for a floor test .................................................................. 123 G b. The Governor’s exercise of the power to call for a floor test ...................................................... 127 viii. The exercise of discretion by the Governor in inviting Mr. Shinde to be the Chief Minister ........................................................133 H
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A a. Mr. Shinde’s appointment is not barred by Article 164(1B) of the Constitution ............................ 134 b. The Governor did not exceed the scope of his authority ......................................................... 137 F. Conclusions ............................................................ 139 B
11. The Writ Petitions instituted before this Court under Article 32 of the Constitution arise from the political imbroglio in the State Legislature of Maharashtra. A coalition consisting of the Shiv Sena, the Nationalist Congress Party,1 the Indian National Congress,2 and certain independent Members of the Legislative Assembly 3formed the C government in the State of Maharashtra with Mr. Uddhav Thackeray of the Shiv Sena as the Chief Minister. Certain events transpired in mid- 2022 which led to the formation of a new government by a coalition consisting of a faction of the Shiv Sena (which claimed to the “real” Shiv Sena), the Bharatiya Janata Party,4 and certain independent MLAs. D Mr. Eknath Shinde of the Shiv Sena helmed the second government as its Chief Minister. The change in the composition of the government in the State of Maharashtra was precipitated by the emergence of two factions within the Shiv Sena. Various issues arising from these events fall to be determined by this Court in these proceedings. A detailed narration of the factual background follows. E A. Factual Background i. A change in the government of the State of Maharashtra
22. The Shiv Sena was founded in 1966 in Maharashtra. The Election Commission of India5 recognizesthe Shiv Sena as a state political F party. The organizational election of the party for the term extending from January 2018 to January 2023 was held on 23 January 2018 and Mr. Uddhav Thackeray was elected as the Party President or the ‘Paksh Pramukh.’
33. The elections to the 14th Legislative Assembly of Maharashtra G were held in October 2019. Of a total of two hundred and eighty-eight seats, the BJP returned candidates in one hundred and six seats, the 1 "NCP” 2 "INC” 3 "MLA” 4 "BJP” H 5 "ECI”
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 871 MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]
Shiv Sena in fifty-six seats, the NCP in fifty-three seats, and the INC in forty-four seats. Independent candidates were returned in thirteen constituencies and the remaining constituencies returned candidates from various other parties. In November 2019, the Shiv Sena, the NCP, and the INC formed a post-poll alliance which came to be known as the Maha Vikas Aghadi.6 The MVA successfully staked a claim to form the government in Maharashtra and Mr. Uddhav Thackeray was sworn in as the Chief Minister. On 25 November 2019, pursuant to a meeting chaired by Mr. Uddhav Thackeray, all fifty-six MLAs of the Shiv Sena issued a communication to the Speaker of the Maharashtra Legislative Assembly intimating him that Mr. Eknath Shinde was appointed as the Group Leader of the Shiv Sena Legislature Party7 and that Mr. Sunil C Prabhu was appointed as the Chief Whip of the SSLP.
44. The MVA continued to govern the State of Maharashtra until June 2022, when news reports revealed that some MLAs who belonged to the Shiv Sena were meeting with leaders of the BJP. At this time, the office of the Speaker lay vacant, and the functions of the Speaker were being discharged by the Deputy Speaker, Mr. Narhari Zirwal.
55. The events which followed indicate that the SSLP fractured into two factions: one led by the then Chief Minister, Mr. Uddhav Thackeray, and the other led by the Group Leader of the SSLP, Mr. Eknath Shinde. Each faction claimed to represent the “real” political party and passed various resolutions pertaining to the affairs of the SSLP.For ease of reference, we refer to the faction led by Mr. Thackeray as the petitioners and the faction led by Mr. Shinde as the respondents.
66. On 21 June 2022, the Chief Whip of the Shiv Sena, Mr. Sunil Prabhu, issued a whip directing all MLAs of the Shiv Sena to attend a F meeting at Mr. Thackeray’s residence on the same day. Many MLAs, including the Group Leader Mr. Eknath Shinde, did not attend this meeting. The MLAs who were in attendance passed a resolution removing Mr. Eknath Shinde from the position of the Group Leader of the SSLP and appointing one Mr. Ajay Choudhari in his place. The decisions taken by way of this resolution were communicated to the Deputy Speaker on G the same day, i.e., 21 June 2022. Also on the same day, the Deputy Speaker communicated his acceptance of the change in the Group Leader of the SSLP. 6 "MVA” 7 “SSLP” H
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77. Concurrently, thirty-four MLAs of the Shiv Sena (i.e., the respondents) organized a separate meeting and passed a resolution reaffirming that Mr. Eknath Shinde “continues to be” the Group Leader of the SSLP. It was further resolved that the appointment of Mr. Sunil Prabhu as the Chief Whip was cancelled, and that Mr. Bharat Gogawale was appointed in his place. The resolution is dated 21 June 2022 and was purportedly passed in Guwahati, Assam. The petitioners claim that it was received by the Deputy Speaker only on 22 June 2022 while the respondents claim that it was sent on 21 June 2022.8. Mr. Eknath Shinde wrote to the Deputy Speaker communicating the details of the resolution passed by the thirty-four MLAs of the Shiv Sena, by which his appointment as the Group Leader of the SSLP was reaffirmed. He requested the Deputy Speaker not to recognize Mr. Ajay Choudhari as the Group Leader in view of the resolution reaffirming his appointment. Once again, the petitioners claim that the Deputy Speaker received this communication on 22 June 2022 and the respondents aver that it was sent on 21 June 2022. D
99. The same thirty-four MLAs also issued a notice to Mr. Narhari Zirwal, the 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. The E petitioners claim that this notice, too, was received by the Deputy Speaker on 22 June 2022. The respondents maintain that it was sent on the preceding day, 21 June 2022.
1010. On 22 June 2022, Mr. Sunil Prabhu issued individual communications to all MLAs of the Shiv Sena, calling upon them to F attend a meeting of the SSLP scheduled to take place that evening at Mr. Thackeray’s residence. The communication stated as follows: “…failure to participate in the meeting without providing valid and adequate reasons in writing, communicated in advance to the undersigned, will result in consequential action against you under the relevant provisions of the Constitution of India.” G The meeting on 22 June 2022, too, was not attended by many MLAs of the Shiv Sena including Mr. Eknath Shinde.
1111. Mr. Eknath Shinde addressed a letter to Mr. Sunil Prabhu on 22 June 2022 accusing him of misusing the letterhead of the SSLP. The letter stated that: H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 873 MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]
a. A meeting of forty-five MLAs of the Shiv Sena was held A under the chairmanship of Mr. Eknath Shinde; b. Mr. Sunil Prabhu was removed from the position of Chief Whip of the Shiv Sena; c. Mr. Bharat Gogawale was appointed as the Chief Whip of the Shiv Sena in place of Mr. Sunil Prabhu; and B
d. Mr. Sunil Prabhu did not have the authority to sign the communication dated 22 June 2022 (issued by him to all MLAs of the Shiv Sena). It was therefore not binding upon Mr. Eknath Shinde to attend the meeting scheduled to take place at Mr. Thackeray’s residence. C
1212. On 23 June 2022, Mr. Sunil Prabhu filed petitions under Paragraph 2(1)(a) of the Tenth Schedule to the Constitution for the disqualification of Mr. Eknath Shinde and fifteen other MLAs of the Shiv Sena. The Deputy Speaker issued notices in these disqualification petitions on 25 June 2022. The relevant portion of the order issuing notice D is reproduced below: “You are instructed to submit written submissions as per the procedure laid in the Members of Maharashtra Legislative Assembly (Disqualification on Ground of Defection) Rules 1986 by Monday, 27th June 2022 by 5.30 pm to Deputy Speaker.” E
1313. On 27 June 2022, the jurisdiction of this Court under Article 32 was invoked by the respondents challenging the notice issued in the disqualification petitions. This Court passed an interim order on the same day in the following terms, extending the time to respond to the disqualification petitions from 27 June 2022 to 12 July 2022: F “Meanwhile as an interim measure, the time granted by the Deputy Speaker of the Assembly to the petitioners or other similarly placed Members of the Legislative Assembly to submit their written submissions upto today by 5.30P.M., is extended till 12.07.2022.”
1414. Separately, Mr. Sunil Prabhu filed petitions for the G disqualification of two independent MLAs as well as one MLA of the Prahar Janshakti Party on 25 June 2022 and against twenty-two MLAs of the Shiv Sena on 27 June 2022.
1515. On 28 June 2022, the then Leader of Opposition Mr. Devendra Fadnavis addressed a letter to the Governor inter alia conveying that H
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A he believed that the then Chief Minister, Mr. Thackeray, did not enjoy a majority on the floor of the House. He called upon the Governor to direct Mr. Thackeray to prove his majority on the floor of the House. Seven MLAs who were elected as independent candidates penned a similar letter to the Governor on the same day. They too requested the Governor to direct Mr. Thackeray to prove his majority on the floor of B the House.
1616. The Governor issued a letter to the then Chief Minister, Mr. Uddhav Thackeray on 28 June 2022, calling upon him to face a floor test on 30 June 2022. The communication specified the manner in which the trust vote was to be conducted in the following terms: C “(i) A Special session of the Maharashtra Vidhan Sabha be summoned on 30.06.2022 at 11:00 AM with the only agenda of a trust vote against the Government. (ii) The business of the house shall be conducted in such a way D that the speeches, if any, are concluded in a short period of time and the trust vote is concluded on 30.06.2022 by 5:00 PM. (iii) The voting will be conducted by asking Members to rise in their seats for the purpose of counting votes as contemplated under the Maharashtra Legislative Assembly Rules. E (iv) The Proceedings have to be live telecast, and appropriate arrangements are to be made to ensure the same. (v) The entire proceedings of the trust vote shall be videographed by the Vidhan Sabha Secretariat through an independent agency and shall be submitted to me. F (vi) The aforesaid proceedings shall be started on 30.06.2022 at 11:00 AM and no case shall be same be adjourned, delayed or suspended. (vii) Adequate arrangements shall be made for the security of the Members both outside and inside the Vidhan Bhavan to ensure G smooth conducting of the floor test.” The Governor also issued a communication dated 28 June 2022 to the Secretary, Maharashtra Legislative Assembly calling upon him to make necessary arrangements for the session of the Maharashtra Legislative Assembly at which the floor test was to be conducted. H
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1717. On the very next day (29 June 2022), Mr. Sunil Prabhu instituted A a Writ Petition before this Court for setting aside the communications dated 28 June 2022 issued by the Governor to the Chief Minister as also to the Secretary, Maharashtra Legislative Assembly, on the ground that disqualification petitions against forty-two MLAs of the Shiv Sena were pending consideration before the Deputy Speaker. This Court declined B to stay the trust vote. The relevant portion of the order dated 29 June 2022 passed by this Court is reproduced below: “8 … (i) We do not find any ground to stay convening of the Special Session of the Maharashtra Vidhan Sabha on 30-6-2022, i.e, tomorrow at 11.00 a.m. with the only agenda of a trust vote; C (ii) The proceedings of the trust vote to be convened on 30-6-2022 shall be subject to the final outcome of the instant Writ Petition as well the Writ Petitions referred to above; (iii) the Special Session of the Maharashtra Vidha Sabha shall be conducted in accordance with the directions as contained in the D communication dated 28-6-2022 of the Governor of Maharashtra.” Mr. Thackeray, resigned on the same day.
1818. 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 E Shinde to form the government. On the same day, Mr. Shinde submitted a letter to the Governor along with a resolution by thirty-nine MLAs from the SSLP unanimously resolving to authorise Mr. Shinde to initiate proceedings to form the government in the State. In said letter, Mr. Shinde claimed the support of one hundred and six BJP MLAs and seventeen F independent and other MLAs. Moreover, Mr. Shinde claimed that he had the support of the majority and requested the Governor to invite him to take oath as the Chief Minister. On 30 June 2022, sixteen MLAs who were independent candidates or belonged to parties other than the Shiv Sena, BJP, INC, and NCP wrote to the Governor expressing their support for a government led by Mr. Shinde. On the same day, the Governor G issued a communication to Mr. Shinde inviting him to take oath as the Chief Minister and requesting him to prove that he enjoyed the confidence of the Assembly within a period of seven days of taking over as the Chief Minister. H
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1919. 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. On the same day, Mr. Thackeray issued a letter to Mr. Shinde stating that he had been removed from the post of ‘Shiv Sena Leader’ in the organisational structure of the party. Mr. Thackeray similarly removed B other MLAs of the Shiv Sena from their roles as office-bearers of the party. ii. The election of the Speaker
2020. Later that week, the Principal Secretary of the Maharashtra C Legislative Assembly circulated the working order for the session which was scheduled to take place on 3 July 2022. The fifth item on the agenda reflected that the election for the post of the Speaker was to be conducted. An MLA belonging to the BJP nominated Mr. Rahul Narwekar of the BJP for this position while an MLA of the Shiv Sena (ostensibly from Mr.Thackeray’s faction) nominated Mr. Rajan Salvi of the Shiv Sena. D Further, a motion of confidence for the Council of Ministers headed by the Chief Minister, Mr. Shinde, was scheduled to be moved in a session of the Assembly on 4 July 2022.
2121. In view of the agenda for the sessions of the Assembly, Mr. Sunil Prabhu issued two whips on 2 July 2022. The first whip directed all E MLAs of the Shiv Sena to attend the session of the Maharashtra Legislative Assembly on 4 July 2022 and vote against the motion of confidence for the Council of Ministers headed by the Chief Minister, Mr. Shinde. The second whip directed all MLAs of the Shiv Sena to attend the session of the Maharashtra Legislative Assembly on 3 July F 2022 and vote for the Shiv Sena’s candidate, Mr. Rajan Salvi, in the election for the post of the Speaker.
2222. The election for the post of the Speaker was conducted as scheduled and Mr. Rahul Narwekar of the BJP emerged victorious, with a total of one hundred and sixty-four votes cast in his favour. Thirty-nine MLAs of the Shiv Sena (led by Mr. Shinde) voted in favour of Mr. G Rahul Narwekar’s candidature. Consequently, Mr. Sunil Prabhu instituted fresh disqualification proceedings against these MLAs under Paragraph 2(1)(b) of the Tenth Schedule to the Constitution for violating the whip issued by him.
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 877 MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]
2323. After assuming office as the Speaker of the House, Mr. Rahul A Narwekar cancelled the approval granted to Mr. Ajay Choudhari as the Leader of the SSLP and approved the appointment of Mr. Eknath Shinde in his place. Further, he recognized Mr. Bharat Gogawale as the Chief Whip of the Shiv Sena in place of Mr. Sunil Prabhu. These decisions of the Speaker were recorded in a communication dated 3 July 2022 issued B by the Deputy Secretary of the Maharashtra Legislative Assembly, the relevant portion of which is extracted below: “…after deliberation … Hon’ble Speaker, Maharashtra Legislative Assembly has cancelled the approval granted to Shri Ajay Choudhari as leader, Shiv Sena Legislative Party and approves & recognizes the nomination of Shri Eknath Shinde as Leader, Shiv C Sena Legislative Party as per the letter dated 31st October 2019. Similarly, the proposal to nominate Shri Sunil Prabhu as Chief Whip of Shiv Sena Legislative Party is to be cancelled and to recognize the nomination of Shri Bharat Gogawale as Chief Whip of ShivSena Legislative Party has been approved and recorded in D the registry.” Mr. Bharat Gogawale issued a whip on 3 July 2022 directing all MLAs of the Shiv Sena to attend the session of the Maharashtra Legislative Assembly on 4 July 2022 and vote in favour of the motion of confidence for the Council of Ministers headed by the Chief Minister, E Mr. Shinde.
2424. To summarize – in June 2022, Mr. Thackeray was the Chief Minister, Mr. Shinde was the Leader of the SSLP, and Mr. Sunil Prabhu was the Chief Whip of the Shiv Sena.However, by 3 July 2022, Mr. Thackeray had resigned from the position of Chief Minister and Mr. F Shinde was the Chief Minister, Mr. Ajay Choudhari was recognized as the Leader of the SSLP and subsequently replaced by Mr. Shinde, and Mr. Bharat Gogawale was recognized as the Chief Whip in place of Mr. Sunil Prabhu. Each faction continued to claim that the appointments made by them and communicated to the Speaker or the Deputy Speaker, as the case may be, were legal and valid, and that the appointments G made by the opposite faction were illegal and invalid. Time and again, the question of who the “real” Shiv Sena was, arose.
2525. Soon after the election of the Speaker, some MLAs of the Shiv Sena who belonged to Mr. Thackeray’s faction issued (on two H
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A different occasions) notices of intention to move a resolution for the removal of Mr. Rahul Narwekar from the office of the Speaker under Article 179(c) of the Constitution read with Rule 11 of the Maharashtra Legislative Assembly Rules 2019.
2626. On 4 July 2022, a motion of confidence was moved on the floor of the Maharashtra Legislative Assembly. The House expressed its confidence in Mr. Shinde. As a consequence, Mr. Sunil Prabhu filed fresh petitions for the disqualification of thirty-nine MLAs (led by Mr. Shinde) under Paragraph 2(1)(b) of the Tenth Schedule for violating the whip issued by him on 2 July 2022. Similarly, Mr. Bharat Gogawale filed petitions for the disqualification of fourteen MLAs of the Shiv Sena (led by Mr. Thackeray) under Paragraphs 2(1)(a) and 2(1)(b) of the Tenth Schedule for violating the whip issued by him on 3 July 2022. On 8 July 2022, Mr. Rahul Narwekar issued notices in the latter set of disqualification petitions. iii. The proceedings before the Election Commission of D India
2727. On 19 July 2022, Mr. Eknath Shinde filed a petition before the ECI under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order 19688 for the allotment of the symbol of the Shiv Sena, i.e., the ‘bow and arrow,’ to the faction led by him. The ECI directed the groups led by Mr. Shinde and Mr. Thackeray to furnish their written submissions and any documents in favour of their claims.
2828. Thereafter, the petitioners filed two interlocutory applications for the impleadment of the ECI in WP(C) 493 of 2022 and for a stay on the proceedings before the ECI. The first of these (for impleadment of the ECI) was allowed by this Court by its order dated 27 September
2022. The interlocutory application seeking a stay was dismissed by the same order.
2929. On 17 October 2022, the ECI passed an order granting the ‘bow and arrow’ symbol to the group led by Mr. Shinde. G B. Overview of the reliefs sought in the present proceedings
3030. These proceedings arise from six Writ Petitions filed by members of the groups led by both Mr. Thackeray as well as Mr. Shinde. The reliefs sought in each of these petitions are captured in the table below, for ease of reference: 8 H "Symbols Order”
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 879 MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]
Case details Relief sought A WP(C) 493 of 2022 a. Quash the decision of the Governor dated 30 June 2022 inviting Mr. Eknath Shinde to take oath as the Chief Minister of Maharashtra, and form the Government; and/or
b. Quash the proceedings of the Maharashtra Legislative B Assembly held on 3 July 2022, and consequently the election of the Speaker; and/or
c. Quash the proceedings of the Maharashtra Legislative Assembly held on 4 July 2022, and consequently the C Confidence Motion in favour of Mr. Eknath Shinde; and/or
d. Call for the records of all pending disqualification petitions filed against Eknath Shinde and the other MLAs led by him pending before the Speaker and the Deputy Speaker D under Paragraph 2(1)(a) and Paragraph 2(1)(b) of the Tenth Schedule and transfer these petitions to this Court under Article 142 of the Constitution and decide them.
WP(C) 469 of 2022 a. Direct the Deputy Speaker to not take any action in the E petition for disqualification of Mr. Eknath Shinde under Paragraph 2(1)(a) of the Tenth Schedule until the resolution for the removal of the Deputy Speaker is decided; F b. In the interim, stay the effect and operation of the notice dated 25 June 2022 issued by the Deputy Speaker to Eknath Shinde;
c. Quash the letter / order dated 21 June 2022 passed by the G Deputy Speaker accepting the appointment of Mr. Ajay Choudhari as the Leader of Shiv Sena Legislature Party;
d. In the interim, stay the effect and operation of the letter/order dated 21 June 2022 passed by the Deputy H
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A Speaker recognising the appointment of Mr. Ajay Choudhari as the Leader of the Shiv Sena Legislature Party;
e. Direct the Union of India and the Director General of B Police, Maharashtra to provide security to the family of Mr. Eknath Shinde and all his supporters within the Shiv Sena Legislature Party.
WP(C) 468 of 2022 a. Direct the Deputy Speaker to not take any action in the C petitions for disqualification of the petitioners in this petition under Paragraph 2(1)(a) of the Tenth Schedule until the resolution for the removal of the Deputy Speaker is decided;
D b. In the interim, to stay the effect and operation of the notice dated 25 June 2022 issued to the Petitioners by the Deputy Speaker;
c. Direct the DGP, Maharashtra to ensure that there shall be E no hindrance to any of the MLAs taking recourse to their rights and liberties as citizens and arrange for security to be provided to all the MLAs and their families.
F WP(C) 479 of 2022 a. Quash the communication dated 3 July 2022 issued by the Speaker of the Maharashtra Legislative Assembly.
WP(C) 470 of 2022 a. Set aside the communication dated 28 June 2022 sent by the Governor to Mr. Uddhav Thackeray as well as to the G Secretary, Maharashtra Legislative Assembly.
C. The reference
3131. The Writ Petitions described in the previous segment of this judgment were listed before a three-Judge Bench of this Court on 4 H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 881 MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]
August 2022, when Mr. Kapil Sibal and Dr. Abhishek Manu Singhvi, A learned senior counsel appearing on behalf of the petitioners and Mr. Harish Salve, learned senior counsel appearing on behalf of the respondents advanced arguments on whether the issues raised in these petitions required reference to a five-judge Bench of this Court.
3232. By its order dated 23 August 2022, this Court accepted the B submission that this batch of Writ Petitions ought to be referred to a five-Judge Bench under Article 145(3) of the Constitution as substantial questions of law remained to be decided.It accordingly referred the matter. The following questions were framed for consideration: a. Whether a notice for removal of a Speaker restricts them from continuing with disqualification proceedings under C Tenth Schedule of the Constitution, as held by this Court in Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly;9 b. Whether a petition under Article 226 or Article 32 lies, inviting a decision on a disqualification petition by the High D Courts or the Supreme Court, as the case may be; c. Can a court hold that a member is “deemed” to be disqualified, by virtue of his/her actions, absent a decision by the Speaker; d. What is the status of proceedings in the House during the E pendency of disqualification petitions against the members; e. If the decision of a Speaker that a member has incurred disqualification under the Tenth Schedule relates back to the date of the action complained of, then what is the status of proceedings that took place during the pendency of a F disqualification petition; f. What is the impact of the removal of Paragraph 3 of the Tenth Schedule; g. What is the scope of the power of the Speaker to determine the Whip and the leader of the house legislature party? What G is the interplay of the same with respect to the provisions of the Tenth Schedule; h. Are intra-party decisions amenable to judicial review? What is the scope of the same;i. What is the extent of discretion 9 (2016) 8 SCC 1 H
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A and power of the Governor to invite a person to form the Government, and whether the same is amenable to judicial review; and j. What is the scope of the powers of the Election Commission of India with respect to the determination of a split within a B party. D. Submissions i. Submissions on whether Nabam Rebia’s case ought to be referred to a larger Bench
3333. Learned senior counsel appearing on behalf of the parties addressed this Court on the first of the issues specified in the preceding paragraph, that is, on whether a notice of intention to move a resolution for the removal of a Speaker restricts them from continuing with disqualification proceedings under the Tenth Schedule of the Constitution, as held by this Court in Nabam Rebia (supra). D
3434. Mr. Kapil Sibal, Dr. Abhishek Manu Singhvi and Mr. Devadatt Kamat, learned senior counsel advanced submissions on behalf of the petitioners. Their submissions were opposed by Mr. Harish Salve, Mr. Neeraj Kishan Kaul, Mr. Mahesh Jethmalani, Mr. Maninder Singh and Mr. Siddharth Bhatnagar, learned senior counsel appearing for the respondents. Mr. Tushar Mehta, learned Solicitor General, appeared on behalf of the Governor of the State of Maharashtra.
3535. In Nabam Rebia (supra), a Constitution Bench of this Court inter alia ruled that it is impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule after a notice of intention to move a resolution for their removal from the office of the Speaker is issued. The petitioners have urged that this aspect of the decision in Nabam Rebia (supra) ought to be referred to a Bench of seven Judges of this Court because: a. In Kihoto Hollohan v. Zachillhu,10 a Constitution Bench G of this Court held that the Court cannot interfere in disqualification proceedings under Paragraph 6 of the Tenth Schedule at an interlocutory stage save in exceptional circumstances. In terms of the decision in Nabam Rebia (supra), the proceedings under the Tenth Schedule would 10 H (1992) Supp (2) SCC 651
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 883 MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]
be interdicted upon the issuance of a notice of intention to A move a resolution for the removal of the Speaker. This amounts to interference in disqualification proceedings at the interlocutory stage. The decisions in Kihoto Hollohan (supra) and Nabam Rebia (supra), therefore, conflict with one another; B b. The decision in Nabam Rebia (supra) is prone to be misused by defecting MLAs, whose consequent disqualification under the Tenth Schedule can be avoided by disabling the Speaker from proceeding with disqualification proceedings by issuing a notice of intention to move a resolution for their removal under Article 179 of the Constitution. The C Speaker is left without a remedy in case of their improper removal, while a disqualified member may access the remedy of judicial review if they have been unlawfully disqualified; c. By holding that the Speaker is disabled from proceeding D with disqualification proceedings under the Tenth Schedule when a notice of intention to move a resolution fortheir removal is issued, Nabam Rebia (supra) has the effect of: i. Effacing the distinction between the role of the Speaker as a Tribunal under the Tenth Schedule and the role of the E Speaker as an Officer of the State Legislature; ii. Disrupting the continuity in the functioning of the Tribunal under Paragraph 6 of the Tenth Schedule; and iii. Creating a constitutional hiatus in the operation of the Tenth F Schedule. d. The decision in Nabam Rebia (supra) is based on the interpretation of the phrase “all the then Members of the Assembly” in Article 179(c) of the Constitution to mean that the composition and strength of the House cannot be G altered once a notice of intention to move a resolution for the removal of the Speaker is issued. This interpretation is contrary to: i. The plain language of Article 179; ii. The import of Article 181; and H
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A iii. The deliberations in the Constituent Assembly Debates. e. In terms of the decision of this Court in Rajendra Singh Rana v. Swami Prasad Maurya,11 the disqualification of an MLA relates back to the date on which they engaged in the conduct proscribed under the Tenth Schedule. The B scheme of the Constitution does not envisage the possibility of disqualified MLAs issuing a notice of intention to move a resolution for the removal of the Speaker after the date on which they engaged in the proscribed conduct.
3636. The respondents opposed the submissions urged on behalf of the petitioners. They submitted that the decision in Nabam Rebia (supra) is not required to be referred to a Bench of seven Judges of this Court for the following reasons: a. The decision in Nabam Rebia (supra) is based on ethical and constitutional considerations. If an MLA is unjustly disqualified by the Speaker and their disqualification is set aside by the courts, they would have been deprived of the opportunity to vote on the resolution for the removal of the Speaker as well as the opportunity to participate in other proceedings of the House. On the other hand, if the Speaker is unjustly removed from office, they do not lose membership of the House and consequently retain the right to participate in the proceedings of the House. They may also be re-elected as the Speaker; b. The Speaker may act as a Tribunal under the Tenth Schedule only when they enjoy the confidence of the House; F c. Article 181(1) provides that the Speaker cannot preside in the Legislative Assembly when a motion for their removal is pending; d. The decision in Kihoto Hollohan (supra) is an exception and not a general rule. Disabling the Speaker from deciding G disqualification petitions upon the issuance of a notice of intention to move a resolution for their removal does not conflict with the ruling in Kihoto Hollohan (supra) because the disablement of the Speaker does not amount to interference at the interlocutory stage; and 11 H (2007) 4 SCC 270
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 885 MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]
e. In Nabam Rebia (supra), the Constitution Bench addressed A the issue pertaining to the role of the Speaker when disqualification proceedings are initiated against MLAs. The issue has ceased to be a “substantial question of law” and cannot be referred to a larger bench under Article 145(3) of the Constitution. B
3737. Mr. Tushar Mehta, the learned Solicitor General, appeared for the Governor of the State of Maharashtra and urged that Nabam Rebia (supra) did not warrant a reference to a larger Bench for the following reasons: a. It is not the case of the petitioners that Nabam Rebia C (supra) is per incuriam. It considers all the relevant aspects, precedent, and constitutional provisions; b. Nabam Rebia (supra) considers the possibility of the misuse of the temporary disablement of the Speaker; c. The assertion that Nabam Rebia (supra) protects a member D of a House from disqualification is incorrect because members can always be subjected to disqualification proceedings by a Speaker whose majority in the House is not under a cloud of suspicion; d. Although the Speaker performs different functions as a E “Tribunal” under the Tenth Schedule and as an “officer of the State Legislature” under the rules of the House, their authority to perform both functions is derived from the same source which is the confidence of the majority of the House; and F e. Nabam Rebia (supra) does not conflict with Kihoto Hollohan (supra) because the latter permits quia timet actions where there are “grave, imminent and irreparable consequences.”
3838. By its order dated 17 February 2023, this Court directed that G the issue of whether a reference of the decision in Nabam Rebia (supra) to a larger Bench was warranted, would be determined together with the merits of the case. The order reads thus: “8. The issue of whether a reference to a Bench of seven Judges should be made cannot be considered in the abstract; isolated or H
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A divorced from the facts of the case. Whether, the above principle which has been formulated in Nabam Rebia (supra) has an impact upon the factual position in the present case, needs deliberation.
9. In the above backdrop, the issue whether a reference of the decision in Nabam Rebia (supra) to a larger Bench is warranted, B would be determined together with the merits of the case.”
3939. Learned counsel appearing for the parties were then heard on the merits of the case. ii. Submissions on the merits of the case
4040. Mr. Kapil Sibal, learned senior counsel appearing on behalf of the petitioners made the following submissions: a. A constitutional court, by virtue of its power under Articles 32 and 226 of the Constitution can decide whether an MLA is disqualified under the provisions of the Tenth Schedule. D This Court has recognised this exceptional power in Rajendra Singh Rana (supra). The following exceptional circumstances indicate that this Court must decide the disqualification petitions in these proceedings: i. The constitutionality of events which succeeded the filing of the disqualification petitions, namely, the E direction of the Governor on 28 June 2022 to the then Chief Minister Mr. Uddhav Thackeray to facea floor test, the swearing in of Mr. Eknath Shinde as the Chief Minister on 30 June 2022, the appointment of the Speaker on 3 July 2022, the floor test held on F 4 July 2022, and the petition filed by a faction led by Mr. Eknath Shinde under Paragraph 15 of the Symbols Order, have been challenged before this court; ii. The Speaker was appointed with the support of the faction of the Shiv Sena legislators led by Mr. Eknath G Shinde. The Speaker has conducted himself in a biased and mala fide manner. In a communication dated 3 July 2022, the Speaker de-recognised Mr. Ajay Choudhari and Mr. Sunil Prabhu as the Leader of the SSLP and the Chief Whip of the Shiv Sena respectively, and instead recognised Mr. Eknath H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 887 MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]
Shinde and Mr. Bharat Gogawale respectively. The A decision of the Speaker in the disqualification proceedings would depend on who was recognized as the Chief Whip which is also under challenge in the instant batch of proceedings; iii. A Constitutional Court while deciding disqualification B petitions must decide if a per se case of disqualification is made out against the MLAs; iv. In the facts of the present case, a per se case of disqualification is made out under Paragraph 2(1)(a) of the Tenth Schedule against the faction of legislators led by Mr. Eknath Shinde because: C I. They deliberately did not attend the SSLP meetings held on 21 June 2022 and 22 June 2022; II. On 22 June 2022, they passed illegal resolutions appointing Mr. Shinde as the Leader of the D SSLP, and Mr. Gogawale as the Chief Whip; and III. The faction led by Mr. Shinde met the Governor along with Mr. Devendra Fadnavis, the then Leader of Opposition. The alliance E of legislators of Mr. Shinde’s faction with the BJP was against the wishes of the Shiv Sena political party. v. In the facts of the present case, a per se case of disqualification is made out under Paragraph 2(1)(b) F of the Tenth Schedule against the faction of legislators led by Mr. Eknath Shinde. On 2 July 2022, Mr. Sunil Prabhu issued a whip for the election of the Speaker. The faction of legislators led by Mr. Shinde violated the whip and voted in favour of Mr. Rahul Narwekar, who was the candidate nominated by the BJP. G vi. Disqualification under the Tenth Schedule relates back to the date on which the MLA engaged in the act incurring disqualification. Thus, the outcome of the proceedings on the floor of the House which took place during the pendency of the disqualification H
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A proceedings would depend on the decision of the Speaker on the disqualification petitions. In the same vein, the outcome of the trust vote would depend on the decision in the disqualification proceedings. Additionally, this Court by its order dated 29 June 2022 while dismissing the writ petition filed by the petitioners seeking a stay on the direction of the Governor to hold a trust vote, observed that the proceedings of the trust vote shall be subject to the final outcome of the writ petition; vii. The faction of legislators led by Mr. Shinde have asserted that they are the “real” Shiv Sena. They have also initiated proceedings under Paragraph 15 of the Symbols Order. The defence of the respondents in effect is that of a split. The defence of split having been deleted from the Tenth Schedule D by the Constitution(Ninety-first Amendment) Act 2003 cannot be used by the respondents as a defence for actions that incur disqualification; b. The purported resolution dated 21 June 2022 passed by the respondents appointing Mr. Gogawale as the Chief Whip, E and the communication of the Speaker dated 3 July 2022 recognising Mr. Gogawale as the Chief Whip are illegal and must be set aside. The Chief Whip and the Leader of the legislature party must be appointed by the political party and not the legislature party because:
F i. Paragraph 2(1)(b) of the Tenth Schedule stipulates that the whip must be issued by the political party (and not the legislature party) or by an authority authorised by the political party. Thus, the whip cannot be issued or altered by a majority of the legislature party. Paragraphs 1(b) and 1(c) differentiate between G a legislature party and a political party for the purposes of the Tenth Schedule. This reading of the Tenth Schedule has been affirmed by Srinivasan, J. in his separate opinion in Mayawati v. Markandeya Chand;12 12 H (1998) 7 SCC 517
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ii. A majority faction of the legislature party cannot be construed as the political party for the purposes of the Tenth Schedule; iii. The explanation to Section 23 of the Maharashtra Legislature Members (Removal of Disqualification) Act 195613 provides that the Chief Whip inrelation to the Maharashtra Legislative Assembly means a member of the House who has been declared as the Whip by the party forming the government; iv. The Constitution (Fifty-second Amendment) Act 1985, by introducing disqualification of legislators on the ground of defection, recognised the role of political parties in parliamentary democracy; v. The decision of the Speaker ought to be set aside on the ground of procedural irregularity. The Speaker did not provide the political party with an opportunity of being heard before issuing the communication dated 3 July 2022 recognising Mr. Gogawale as the Chief Whip; vi. The decision of the Speaker recognising a whip is not excluded from judicial review by the provisions of Article 212 of the Constitution. Article 212 only precludes judicial review of ‘proceedings in the Legislature of the State’ on the ground of procedural irregularity. This Court in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha14 has held that Article 212 does not exclude judicial review on the grounds of substantive or gross illegality; and vii. The Leader of the legislature party must be appointed only by the political party. The link between the political party and the legislature party would be severed if the legislature party is permitted to appoint G a Leader different from the candidate selected by the political party. c. An MLA who the Speaker holds to have voluntarily given up membership for the purpose of the Tenth Schedule 13 "Act of 1956" 14 (2007) 3 SCC 184 H
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A cannot initiate proceedings under Paragraph 15 of the Symbols Order because they will no longer be a part of the political party. Thus, members of a splinter faction who have been disqualified cannot be permitted to stake a claim under the Symbols Order as the political party; B d. The decision of the ECI does not have any bearing on proceedings under the Tenth Schedule because: (i) Disqualification relates back to the date of the actions which led to the incurring of disqualification; and (ii) The decision of the ECI will only have a prospective effect either from the date on which proceedings were instituted under C Paragraph 15 of the Symbols Order or the decision of the ECI in those proceedings; e. The communication of the Governor dated 28 June 2022 calling for a trust vote is illegal. The Governor’s power to call for a trust vote is not unrestrained. The Governor’s D decision to call for a floor test is subject to judicial review and is liable to be quashed if it is based on extraneous considerations. The Governor’s decision to call for a floor test on 28 June 2022 was illegal because: i. The resolution of thirty-four members of the SSLP E which is relied upon by the Governor does not state that they intend to exit the MVA; and ii. The Governor cannot base his satisfaction on a claim of a majority of the SSLP against the government formed by their own political party; F f. The communication of the Governor dated 30 June 2022 calling Mr. Eknath Shinde to take oath as the Chief Minister is unconstitutional and ought to be set aside for the following reasons: i. The Governor calling Mr. Shinde to take oath amounts G to a recognition of a split in the Shiv Sena; ii. The Governor could not have called Mr. Shinde to form the Government when a disqualification petition was pending against him; H
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iii. The recommendations of the Sarkaria Commission A on the order of preference in which the Governor ought to call for the formation of the government were approved by this Court in Rameshwar Prasad v. Union of India.15 The Governor did not follow this order of precedence; B iv. The decision of the Speaker disqualifying a member is ex post facto. The Speaker must decide as on facts that existed on the date the alleged action incurring disqualification had taken place. A disqualified member of the Assembly cannot be appointed as a Minister in view of the bar in Article C 164(1-B) of the Constitution. g. The order of this Court dated 27 June 2022 created a hiatus in the operation of the Tenth Schedule.
4141. Dr. Abhishek Manu Singhvi, learned senior counsel appearing on behalf of the petitioners made the following submissions: D
a. The status quo ante as on 27 June 2022 ought to be restored for the following reasons: i. The order of this Court on 27 June 2022 extending the time granted to the respondents to respond to the E disqualification petitions created a negative injunction on the functioning of the Speaker. The order of this Court on 29 June 2022 declining to stay the trust vote was a positive order. The Government in the State of Maharashtra would not have changed ‘but for’ the above orders of this Court (relied on Indore F Development Authority v. Manohar Lal;16 ii. The order of this Court on 27 June 2022 is contrary to the judgment of the Constitution Bench in Kihoto Hollohan (supra)where it was held that judicial review cannot be made available at a stage prior to G the decision of the Speaker under the Tenth Schedule. By this order, the court tilted the delicate balance of unfettered functioning of different constitutional functionaries in their respective spheres; 15 (2006) 2 SCC 1 16 (2020) 8 SCC 129 H
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A iii. The order of this Court on 29 June 2022 held that the trust vote would be “subject to the final outcome of the instant writ petition as well as the writ petitions referred above.” Thus, the consequences and the new status quo created must be subject to the final outcome of the instant proceedings. Status quo ante ought to be restored as on 27 June 2022. The power of the court to restore status quo ante is not unheard of. This Court directed status quo ante in Nabam Rebia (supra); and iv. This Court must direct status quo ante to give effect to the object behind the introduction of the Tenth Schedule, which is to curb the evil of political defections; b. Immediately after his appointment as the Speaker on the evening of 3 July 2022, Mr. Rahul Narwekar recalled the order of the Deputy Speaker dated 21 June 2022 recognising Mr. Ajay Choudhari as the Leader of SSLP and Mr. Bharat Gogawale as the Chief Whip of the SSLP. The validity of the order of the Deputy Speaker dated 21 June 2022 was sub judice before this Court. Further, upon his appointment, the Speaker issued notice only on the disqualification petitions instituted by the respondents. The Speaker has behaved contrary to the spirit of neutrality and independence. Allowing the Speaker to decide the disqualification petition would amount to incentivising defection. Thus, this Court and not the Speaker must decide the disqualification petitions; c. The Governor could not have directed a trust vote when the legality of the disqualification petitions was pending consideration;
G d. The letter of the Governor dated 28 June 2022 recognises a split in the Shiv Sena. He does not have the authority to recognise a split; e. The majority in SR Bommai v. Union of India17 held that it would be open to the Court to restore status quo ante 17 H (1994) 3 SCC 1
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 893 MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]
before the issuance of the proclamation if the presidential proclamation was invalid. It was held that status quo ante could be restored even if the proclamation is approved by both the Houses of Parliament. It was also held that it would be open to the court to mould the relief while restoring status quo ante. Thus, this Court has the power to mould relief by holding that legislations passed in the intervening period would not be invalid but other actions during the pendency of the disqualification proceedings such as the election of the Speaker would be invalid if those who voted for the Speaker are held to have incurred disqualification; f. Article 189(2) extends only to situations where there is a C challenge to the proceedings solely because of the eligibility of the members and there is no per se challenge to the validity of the proceedings. However, in the instant case, there is a prior challenge to the decision of the Governor to direct a trust vote. This action of the Governor cannot be D immunised from judicial review by virtue of Article 189(2); g. The resignation of Mr. Uddhav Thackeray on 29 June 2022 cannot dilute the illegality of the action of the Governor in directing a trust vote; h. The decision of the ECI under Paragraph 15 of the Symbols E Order will have prospective effect. The decision of the ECI recognising one of the factions as the Shiv Sena for the purposes of the Symbols Order cannot be applied retrospectively to the pending disqualification petitions. Such an interpretation would also be contrary to settled law that F disqualification relates back to the date when the actions constituting defection were committed; and i. MLAs who are dissatisfied with the status quo of the political party are entitled to resort to a merger under paragraph 4, or resign and re-contest elections, or apply to the ECI under G Paragraph 15 of the Symbols Order for recognition of their faction as the political party and await the decision of the ECI. The members ought to be disqualified if they have chosen to act in a manner that is prohibited under the Tenth Schedule. H
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4242. Mr. Devdatt Kamat, learned senior counsel appearing on behalf of the petitioners made the following submissions: a. The term ‘political party’ as it occurs in the Tenth Schedule relates to the association of persons registered under Section 29A of the Representation of the People Act 1951. ‘Political B party’ refers to the leadership structure subsisting on the date of the alleged prohibited conduct until the recognition of the political party and its leadership structure is altered under the law; b. The members of the legislature party cannot claim that they C represent the political party as a defence to the disqualification petitions instituted against them. Any such factionis only entitled to advance such a claim before the ECI in proceedings under the Symbols Order. The members cannot indulge in conduct that is prohibited under the Tenth Schedule until their claim is settled under the Symbols Order; D c. The Tenth Schedule will be put on a hiatus if the contention of the respondents that the disqualification petitions depend on the adjudication of their claim under Paragraph 15 of the Symbols Order is accepted; and d. The respondents could not have initiated proceedings under E Paragraph 15 of the Symbols Order when disqualification petitions are pending against them since the factor of legislative majority laid down in Sadiq Ali v. Election Commission of India 18 maybe altered based on the adjudication of the disqualification proceedings.
4343. Mr. Neeraj Kishan Kaul, learned senior counsel appearing on behalf of the respondents, made the following submissions: a. In terms of Paragraph 6 of the Tenth Schedule, the Speaker is the sole constitutional authority to adjudicate upon the issue of disqualification. Moreover, Article 212(1) of the G Constitution provides that the validity of proceedings of the state legislature cannot be called into question before courts. The petitioners are attempting to surpass the constitutional authority of the Speaker to adjudicate upon the disqualification petitions; 18 H (1972) 4 SCC 664
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b. The concept of per se disqualification is unknown to the A Constitution. Any decision as to the disqualification proceedings under the Tenth Schedule must be taken after following the due process of law and the principles of natural justice. A member incurs disqualification only after adjudication by the Speaker. The procedure for the adjudication of disqualification petitions is prescribed under the Maharashtra Legislative Assembly (Disqualification on Ground of Defection) Rules 1986;19 c. The MLAs facing disqualification retain the right to participate in the proceedings of the House and vote on resolutions. Article 189(2) of the Constitution provides that any proceedings of the House are not invalid even if it is subsequently discovered that persons who were not entitled to participate or vote or otherwise take part in the proceedings, did so. In Pratap Gouda Patil v. State of Karnataka20 and Speaker, Haryana Vidhan Sabha v. D Kuldeep Bishnoi,21 this Court observed that members should not be stopped from taking part in the proceedings of the House merely because disqualification proceedings were pending against them; d. Prior to the deletion of Paragraph 3 of the Tenth Schedule, E the Speaker’s enquiry as to the existence of a split within a political party was limited to a prima facie determination for deciding the disqualification proceedings. As a result of the deletion of Paragraph 3, the authority of the Speaker to form even a prima facie opinion regarding a split within a political party has been removed. Upon the deletion of F Paragraph 3, the only defence for disqualification proceedings under the Tenth Schedule is that of a merger under Paragraph 4. The ECI is the sole authority empowered to decide disputes between rival factions of a political party according to the provisions of the Symbols Order; G e. A majority of a legislature party may appoint the Leader and the Chief Whip of the legislature party. The 1986 Rules 19 "1986 Rules” 20 (2019) 7 SCC 463 21 (2015) 12 SCC 381 H
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A provide that only the members of the legislature party shall choose their Leader. When the Leader and the Chief Whip are elected by the majority of the legislature party, the Speaker must take a prima facie view and grant recognition to such Leader and Chief Whip for the purposes of the Tenth Schedule. The Speaker has no choice but to appoint B a Leader and a Chief Whip elected by a majority of the members of the legislature party; and f. The decision of the Governor calling Mr. Eknath Shinde to form the Government is valid and cannot be called into question because: C i. Mr. Thackeray resigned on 29 June 2022 without facing the floor test; ii. On the resignation of Mr. Thackeray, it was the constitutional duty of the Governor to call upon another D person who commanded the majority in the Legislative Assembly to form the government; and iii. Mr. Shinde staked his claim to form the government and subsequently proved his majority on the floor of the Legislative Assembly.
4444. Mr. Tushar Mehta, learned Solicitor General, appearing on behalf of the Governor, made the following submissions: a. The decision of the Governor calling upon Mr. Thackeray to prove his majority on the floor of the House was justified because: F i. The Governor has a constitutional obligation to ensure that the Council of Ministers led by the Chief Minister enjoys the support of the majority of the House. The Governor directed Mr. Thackeray to face the floor test based on the prevailing circumstances and the G material before him; ii. In directing the floor test, the Governor did not decide who enjoys the majority in the Legislative Assembly. Further, he did not decide any matter pertaining to the disqualification petitions or the split within the Shiv H Sena;
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 897 MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]
Footnotes
b. The Supreme Court in S R Bommai (supra) and Shivraj Singh Chouhan v. Union of India22 held that calling for an immediate floor test is the most appropriate measure in case any doubt arises as to whether the Chief Minister and the Council of Ministers enjoy the confidence of the House; F c. The issue of the propriety of the Governor’s action calling Mr. Thackeray to prove his majority on the floor of the House has become infructuous because the latter did not face the floor test and instead resigned from the post of Chief Minister; and G d. The decision of the Governor to administer the oath of office to Mr. Shinde cannot be called into question as it was based on the following objective facts:
22 (2020) 17 SCC 1 H
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A i. The letter dated 30 June 2022 by Mr. Devendra Fadnavis extending support to Mr. Eknath Shinde for the formation of the government by the latter; ii. The letter dated 30 June 2022 by Mr. Eknath Shinde informing the Governor that he enjoys the support of B a majority of the MLAs and requesting the Governor to invite him to take oath as Chief Minister; and iii. The letters dated 30 June 2022 by seventeen independent MLAs and MLAs from other parties supporting Mr. Eknath Shinde.
4545. Mr. Maninder Singh, learned senior counsel for the respondents made the following submissions: a. The disqualification petitions under the Tenth Schedule must be decided by the Speaker. Reliance by the petitioners on Rajendra Singh Rana (supra) is erroneous because in that case, the disqualification petitions were already decided by the Speaker. It was only in appeal that this Court decided the issue of disqualification instead of remanding the matter back to the Speaker; b. The disqualification of a member by the Speaker under the Tenth Schedule has drastic consequences. There can never be an automatic or deemed disqualification of an elected representative without affording any opportunity of hearing (relied on Kshetrimayum Biren Singh v. Hon’ble Speaker, Manipur Legislative Assembly23); c. The Tenth Schedule cannot be used to stifle intra-party dissent amongst members of the same political party. Intra- party dissent cannot be termed as defection. Therefore, the respondents did not indulge in prohibitory conduct under Paragraph 2(1)(a) of the Tenth Schedule. Any act of expression of dissent against the leadership of the party does not constitute ‘voluntarily giving up membership of the party’ under Paragraph 2(1)(a). Paragraph 2(1)(b) also has no applicability in the facts of the present case; d. After the deletion of Paragraph 3 from the Tenth Schedule, the Speaker has no jurisdiction to take cognizance of a split 23 H (2022) 2 SCC 759
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in a political party. The ECI has the exclusive jurisdiction to decide a split in a political party under Paragraph 15 of the Symbols Order; and e. The order of this Court on 27 June 2022 granting additional time to the respondents to reply to the disqualification petitions was in accordance with the principles of natural justice.
4646. Mr. Mahesh Jethmalani, learned senior counsel appearing for the respondents made the following submissions: a. The concept of ‘deemed disqualification’ does not exist under the Constitution. Disqualification must be actual and there is a mandated procedure for disqualification proceedings under Rule 7(7) of the 1986 Rules; b. The Speaker decides disqualification proceedings with reference to the date of on which action due to which the MLA is alleged to have incurred disqualification, is committed. However, in view of Articles 189(2) and 191(2) of the Constitution, the order of disqualification only has prospective effect; and c. The petitioners instituted disqualification petitions against sixteen out of the thirty-nine MLAs who were part of Mr. E Shinde’s faction to entice those against whom petitions were not filed to gravitate towards Mr.Thackeray’s faction. The petitioners knew that if all thirty-nine MLAs were disqualified, the MVA government would fall. Later, on 27 June 2022, a second disqualification petition was filed against F the remaining twenty-three MLAs.
4747. Mr. Harish Salve, learned senior counsel for the respondents made the following submissions: a. During the pendency of the disqualification petitions, MLAs are entitled to participate in the proceedings of the House. G Article 189(2) of the Constitution indicates that the subsequent disqualification of a member does not vitiate any actions in the House; and b. The petitioners argued that but for the interim order of the Supreme Court, the disqualification would have followed, H
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A that Mr. Thackeray would not have resigned, and that he would have survived the trust vote. This Court should not enter into the realm of speculation while deciding constitutional matters. In the eventuality that Mr. Thackeray faced the floor test, he would not have had the support of the majority of the legislators. Mr. Thackeray’s resignation B on the eve of the trust vote is a testament to the fact that he had lost the confidence of the House. E. Analysis i. Reference of Nabam Rebia’s case to a larger Bench
4848. Article 179 stipulates that a Speaker (or a Deputy Speaker) may be removed from their office by a resolution passed by a majority of “all the then members of the Assembly.” Article 179 of the Constitution reads as follows: “179. A member holding office as Speaker or Deputy Speaker of D an Assembly— … (c) may be removed from his office by a resolution of the Assembly passed by a majority of all the then members of the Assembly: E Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days’ notice has been given of the intention to move the resolution: Provided further that, whenever the Assembly is dissolved, the Speaker shall not vacate his office until immediately before the F first meeting of the Assembly after the dissolution.”
4949. In Nabam Rebia (supra), the INC formed the government in Arunachal Pradesh under the leadership of Mr. Nabam Tuki. Mr. Nabam Rebia was elected as the Speaker of the Arunachal Pradesh Legislative Assembly. In October 2015, a section of the MLAs of the INC formed G a separate group and opposed the leadership of the Chief Minister. Twenty MLAs of the INC along with two independent MLAs wrote to the Governor claiming that the Chief Minister has lost the trust and confidence of the House. Later, certain MLAs from the opposition parties issued a notice of intention to move a resolution for the removal of the Speaker of the Assembly under Article 179(c) of the Constitution. Thereafter, H
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the Chief Whip of the Congress Legislature Party filed disqualification A petitions under Paragraph 2(1)(a) of the Tenth Schedule against fourteen MLAs of the INC for breaching party directions. The Speaker then issued notices in the disqualification petitions to the MLAs.
5050. On 9 December 2015, the Governor issued an order advancing the session of the Assembly originally scheduled to be held on 14 January B 2016 to 16 December 2015. On the same day, the Governor also issued a message under Article 175(2). In the message, he fixed the resolution for the removal of the Speaker as the first item on the agenda of the House and tasked the Deputy Speaker with conducting the proceedings of the House. The Governor also directed that the Presiding Officer shall not alter the party composition in the House till the session was prorogued. On 17 December 2015, the Government headed by the Chief Minister Mr. Nabam Tuki was declared to have lost the confidence of the House.
5151. It was in this context that Nabam Rebia (supra) came to be decided. A Constitution Bench of this Court in that case (speaking through the majority opinion authored by Khehar, J. and the concurring opinion by Misra, J., as the learned Chief Justices then were) inter alia ruled that it was impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule after a notice of intention to move a resolution for their removal from the office of the Speaker was issued. E
5252. Khehar, J. grounded his opinion on constitutional and moral reasoning. The learned Judge observed that when the position of the Speaker is under challenge, it would “seem” just and proper for the Speaker to establish their right to continue before adjudicating on the disqualification petition(s) pending before them: F “189. When the position of a Speaker is under challenge, through a notice of resolution for his removal, it would “seem” just and appropriate, that the Speaker first demonstrates his right to continue as such, by winning support of the majority in the State Legislature. The action of the Speaker in continuing, with one or more G disqualification petitions under the Tenth Schedule, whilst a notice of resolution for his own removal, from the Office of the Speaker is pending, would “appear” to be unfair. Why would a Speaker who is confident of his majority, fear a floor test? After his position as the Speaker is affirmed, he would assuredly and with conviction, H
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A deal with the disqualification petitions, under the Tenth Schedule. And, why should a Speaker who is not confident of facing a motion, for his removal, have the right to adjudicate upon disqualification petitions, under the Tenth Schedule? The manner in which the matter has been examined hereinabove, is on ethical considerations. A constitutional issue, however, must have a B constitutional answer. We shall endeavour to deal with the constitutional connotation of the instant issue, in the following paragraphs.”
5353. Khehar, J. referred to the Constituent Assembly Debates to elucidate the meaning of the phrase “all the then members of the C Assembly” as it appears in Article 179(c) (draft Article 158). In the course of the debates in the Constituent Assembly, Mr. Mohd. Tahir proposed to substitute the phrase “all the then members of the Assembly” with the phrase “the members of the Assembly present and voting”. However, the proposed amendment was negatived. Justice Khehar D observed that the Constituent Assembly Debates do not appear to have recorded any discussion on this proposed amendment. Khehar, J. noted that this meant that the members of the Constituent Assembly used the phrase to indicate definiteness and that any change in the composition of the Assembly when the notice of intention to move a resolution for the removal of the Speaker was pending would conflict with the express mandate of Article 179(c): “191. […] We are satisfied that the words “passed by a majority of all the then Members of the Assembly”, would prohibit the Speaker from going ahead with the disqualification proceedings under the Tenth Schedule, as the same would negate the effect of the words “all the then Members”, after the disqualification of one or more MLAs from the House. The words “all the then Members”, demonstrate an expression of definiteness. Any change in the strength and composition of the Assembly, by disqualifying sitting MLAs, for the period during which the notice of resolution for the removal of the Speaker (or the Deputy Speaker) is pending, would conflict with the express mandate of Article 179(c), requiring all “the then Members” to determine the right of the Speaker to continue.”
5454. The opinion of the majority further noted that the purpose sought to be achieved through the Tenth Schedule is clear and
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unambiguous, and that it is distinct from the purpose sought to be achieved by Article 179(c): “192. The purpose sought to be achieved through the Tenth Schedule, is clear and unambiguous. The same is unrelated to, and distinct from, the purpose sought to be achieved through Article 179(c). Neither of the above provisions, can be seen as conflicting with the other. Both, must, therefore, freely operate within their individual constitutional space. Each of them will have to be interpreted, in a manner as would serve the object sought to be achieved, without treading into the constitutional expanse of the other. The interpretation would have to be such, as would maintain constitutional purpose and harmony.” C
5555. Khehar, J. observed that if the Speaker decided a disqualification petition before surviving the vote, it would prejudice the MLAs facing disqualification but not the Speaker. The disqualified MLAs would not have a right to participate in the motion moved against the Speaker even if the order of disqualification was set aside. They would, in his view, have been effectively deprived of the opportunity to participate in the motion against the Speaker. However, the MLAs would not lose their right to participate if the disqualification petition was taken up after the motion against the Speaker was put to vote.
5656. Referring to the first proviso to Article 179, Misra, J. observed that the Speaker would gain an advantage if they were allowed to change the composition of the Assembly by adjudicating the disqualification petitions in the fourteen days when the notice was pending. This, he observed, would result in a constitutional conflict between the role of the Speaker as the presiding member of the Assembly and the role of the F Speaker as a Tribunal under the Tenth Schedule. Misra, J. also referred to the amendment to Article 179(c) (draft Article 158) that was negatived by the Constituent Assembly, to reach the same conclusion as Khehar, J. Article 181(2) of the Constitution provides that the Speaker shall have the right to speak in and take part in the proceedings of the Legislative Assembly while a resolution for their removal from office is under G consideration but shall not be entitled to vote in case of an equality of votes. The learned Judge held that the requirement under Article 181(2) when contradistinguished with Article 189 restricts the power of the Speaker to participate in the proceedings seeking their removal since the Speaker has been given the power to vote in the event of an equality H
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