SUBHASH DESAI vs PRINCIPAL SECRETARY, GOVERNOR OF MAHARASHTRA 2023

SUBHASH DESAI vs PRINCIPAL SECRETARY, GOVERNOR OF MAHARASHTRA, 2023

Case Title and Citation Subhash Desai vs. Principal Secretary, Governor of Maharashtra & Ors. Writ Petition (C) No. 493 of 2022 (and connected petitions)

Factual Background

The case arises from a significant political crisis in the Maharashtra State Legislature in mid-2022, which led to a change in the government. A coalition government, the Maha Vikas Aghadi (MVA), led by Mr. Uddhav Thackeray of the Shiv Sena, was in power. Two factions emerged within the Shiv Sena Legislature Party (SSLP): one led by Mr. Thackeray (petitioners) and the other by Mr. Eknath Shinde (respondents). The dispute centered on who represented the “real” Shiv Sena.

The crisis began around June 2022, when some Shiv Sena MLAs (the Shinde faction) met with leaders of the BJP. A key series of events followed:

• The Thackeray faction issued a whip, which the Shinde faction did not obey.
• The Deputy Speaker accepted the removal of Mr. Shinde as Group Leader of the SSLP, replacing him with Mr. Ajay Choudhari.
• The Shinde faction passed a separate resolution reaffirming Mr. Shinde as Group Leader and replacing the Chief Whip.
• Disqualification petitions under Paragraph 2(1)(a) of the Tenth Schedule were filed against Mr. Shinde and fifteen other MLAs by Mr. Sunil Prabhu (Thackeray faction).
• The Deputy Speaker issued notices in the disqualification petitions, granting time until June 27, 2022, for written submissions. This Court, invoked under Article 32 by the respondents, extended the deadline to July 12, 2022.
• The Governor directed Mr. Thackeray to face a floor test on June 30, 2022, based on the material, including letters from the Leader of the Opposition and independent MLAs, and the resolution of the Shinde faction.
• This Court declined to stay the trust vote. Consequently, Mr. Thackeray resigned on June 29, 2022.
• Mr. Shinde was invited by the Governor to take the oath as Chief Minister on June 30, 2022, and subsequently proved his majority in the Assembly.
• Mr. Rahul Narwekar of the BJP was elected as the Speaker on July 3, 2022. He then reversed the Deputy Speaker’s decision, recognized Mr. Shinde as the Leader of the SSLP, and recognized Mr. Bharat Gogawale as the Chief Whip.
• Mr. Shinde subsequently filed a petition before the Election Commission of India (ECI) under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968, for the allotment of the Shiv Sena symbol.

Issue(s)

The Constitution Bench determined ten substantial questions of law, notably:

1. Whether a notice for removal of a Speaker restricts them from continuing with disqualification proceedings under the Tenth Schedule, as held in Nabam Rebia?
2. Whether the Supreme Court can decide disqualification petitions at the first instance?
3. What is the status of proceedings in the House during the pendency of disqualification petitions against members, and whether the decision of disqualification relates back to the date of the action complained of?
4. What is the scope of the power of the Speaker to determine the Whip and the Leader of the legislature party, and the interplay with the Tenth Schedule?
5. What is the impact of the removal of Paragraph 3 of the Tenth Schedule (regarding “split”)?
6. What is the extent of discretion and power of the Governor to invite a person to form the Government, and whether the same is amenable to judicial review?
7. What is the scope of the ECI’s powers regarding the determination of a split within a party?

Decision of the Supreme Court

The Supreme Court issued the following principal conclusions:

1. The correctness of the decision in Nabam Rebia is referred to a larger Bench of seven judges.
2. The Court cannot ordinarily adjudicate disqualification petitions in the first instance; the Speaker must decide them.
3. The Governor was not justified in calling upon Mr. Thackeray to prove his majority.
4. The Governor was justified in inviting Mr. Shinde to form the government.
5. The political party, not the legislature party, appoints the Whip and the Leader in the House. The Speaker’s subsequent recognition of the Shinde faction’s appointments was contrary to law.

Reason for the Decision

1. Reference of Nabam Rebia: The ruling in Nabam Rebia was found to stand on “contradictory reasoning” and conflicts with the principles established in Kihoto Hollohan concerning the Speaker’s independence. The issue needs to be settled by a larger Bench because the ruling is prone to misuse by defecting MLAs seeking to avoid disqualification by disabling the Speaker.
2. Court’s power to decide Disqualification: The exclusive power to decide disqualification vests with the Speaker as a Tribunal. The Court must refrain from deciding these petitions at the first instance, as this involves following established legal procedure and respecting constitutional intent. No exceptional circumstances existed (unlike in Rajendra Singh Rana) to bypass the Speaker, who is the appropriate authority now that the Assembly has duly elected one.
3. Status of Proceedings/Disqualification Effect: An MLA has the right to participate in House proceedings, including the floor test, regardless of pending disqualification petitions. The decision of the Speaker on disqualification is prospective and takes effect only when the decision is made, not retrospectively. Therefore, the validity of House proceedings (like the election of the Speaker or the trust vote) is not contingent on the future outcome of disqualification petitions.
4. Power to Appoint Whip/Leader: Paragraph 2(1)(b) of the Tenth Schedule unequivocally requires directions to vote or abstain to come from the political party or an authority authorized by it. Conflating the ‘political party’ and the ‘legislature party’ would sever the link between the elected member and the party structure, thus undermining the purpose of the Tenth Schedule (anti-defection law). Since the Speaker recognized the Chief Whip (Mr. Gogawale) based solely on the resolution of a faction of the SSLP (legislature party) without inquiring into the political party’s constitution, that decision was illegal.
5. Deletion of Paragraph 3 (Split): The deletion of Paragraph 3 by the 2003 Amendment means the defense of a ‘split’ is no longer available to members facing disqualification. The Speaker, in determining voluntary surrender of membership, must prima facie identify which faction constitutes the political party by examining the party constitution and leadership structure outside the Assembly, not relying blindly on legislative majority.
6. Governor’s Discretion: The Governor was not justified in directing a floor test because he lacked “objective material” to conclude that Mr. Thackeray had lost the House’s confidence. The documents relied upon (Shinde faction resolution) only expressed intra-party dissent, which is insufficient grounds for the Governor to intervene in the internal political arena. However, because Mr. Thackeray voluntarily resigned without facing the test, the Court could not quash the resignation or restore the status quo ante (reinstating the Thackeray government).
7. Shinde’s Appointment: The Governor was justified in inviting Mr. Shinde to form the government after Mr. Thackeray’s resignation. This decision was based on objective material showing that Mr. Shinde commanded the support of the majority party (BJP) and several independent MLAs to form a new government. Furthermore, pending disqualification petitions against Mr. Shinde did not bar his appointment as Chief Minister under Article 164(1B), as that disqualification provision only applies once a member is formally disqualified by the Speaker.

Conclusion

The Supreme Court declined to restore the previous government due to the voluntary resignation of Mr. Thackeray, despite finding that the Governor acted illegally in calling for the floor test without sufficient objective material. The core dispute regarding the authority of the Shiv Sena’s internal leadership must be resolved by the Speaker, who must recognize the Whip and Leader authorized by the political party, not merely a majority of the legislature party. Crucially, the issue of whether a Speaker can proceed with disqualification petitions while a resolution for their removal is pending has been referred to a seven-judge Bench.