# SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF MAHARASHTRA & ORS

- **Citation:** [2023] 8 S.C.R. 857
- **Court:** Supreme Court of India
- **Decided:** 2023-05-11
- **Bench:** Dr. Dhananjaya Y Chandrachud, M. R. Shah, Krishna Murari, Hima Kohli, Pamidighantam Sri Narasimha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/subhash-desai-v-principal-secretary-governor-of-maharashtra-ors-37833
- **Pages:** 112

## Headnote

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
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)
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
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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
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.
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.
Constitution of India: Tenth Schedule and Arts.32

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 [2023] 8 S.C.R. 857
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SUBHASH DESAI
v.
PRINCIPAL SECRETARY, GOVERNOR OF MAHARASHTRA &
ORS.
(Writ Petition (C) No. 493 of 2022)
MAY 11, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI, M. R. SHAH,
KRISHNA MURARI, HIMA KOHLI AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
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
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)
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
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[2023] 8 S.C.R.
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
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.
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.
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
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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.
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.
Constitution of India: Tenth Schedule - Maharashtra
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.
Constitution of India - Arts. 189(2) and 190(3) - Decision of
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
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF
MAHARASHTRA
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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.
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.
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.
Constitution of India - Tenth Schedule - Para 2(1) and Para
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
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
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
- 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
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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.
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.
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
(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
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.
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
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MAHARASHTRA
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is the appropriate constitutional authority to decide the question
of disqualification under the Tenth Schedule. [Para 80 & 85][912G, 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
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]
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
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
Symbols Order is filed after the (alleged) commission of
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prohibitory conduct, the decision of the ECI cannot be relied
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]
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
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
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
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF
MAHARASHTRA
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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;
(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
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
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
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tendered his resignation; and (i) The Governor was justified in
inviting Mr. Shinde to form the government. [Para 206][966-FH; 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.
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.
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:
[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
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
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
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]
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF
MAHARASHTRA
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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 -
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)
[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)
[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)
[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
[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
[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.
(Under Article 32 of The Constitution of India)
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With
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
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
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,
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
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
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,
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.
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF
MAHARASHTRA
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The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, CJI
Table of Contents*
A.
Factual Background .................................................. 4
i.
A change in the government of the State of
Maharashtra ..................................................... 4
ii.
The election of the Speaker ........................12
iii.
The proceedings before
the Election
Commission of India.....................................15
B.
Overview of the reliefs sought in the present
proceedings ...............................................................16
C.
The reference............................................................20
D.
Submissions ...............................................................22
i.
Submissions on whether Nabam Rebia's case
ought to be referred to a larger Bench .....22
ii.
Submissions on the merits of the case ......28
E.
Analysis .....................................................................48
i.
Reference of Nabam Rebia's case to a larger
Bench ..............................................................48
ii.
The power of this Court to decide disqualification
petitions at the first instance ......................62
iii.
Validity of the proceedings of the House
between the prohibitory conduct and the
decision in the disqualification petitions ...69
iv.
The power to appoint the Whip and the
Leader of the Legislature Party .................75
a.
The bar under Article 212: justiciability of legislative
proceedings ...................................................... 76
b.
The power to appoint the Whip and the Leader of
the legislature party .......................................... 80
*Ed. Note : Pagination in the Table is as per the original judgement.
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I.
'Political party' and 'legislature party' are
distinguishable concepts. .................................. 80
II.
Literal and purposive interpretation of the provisions
of the Tenth Schedule, the 1986 Rules, and the Act
of 1956 ............................................................. 85
v.
Deciding who the "real" Shiv Sena is........98
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.
The test(s) applicable to disputes under Paragraph
15 of the Symbols Order ................................ 104
d.
The potential for complications in the present
case ................................................................ 107
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
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
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
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
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]
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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
1. 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 Assembly3formed the
government in the State of Maharashtra with Mr. Uddhav Thackeray of
the Shiv Sena as the Chief Minister. Certain events transpired in mid2022 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.
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.
A. Factual Background
i. A change in the government of the State of Maharashtra
2. The Shiv Sena was founded in 1966 in Maharashtra. The
Election Commission of India5 recognizesthe Shiv Sena as a state political
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.'
3. The elections to the 14th Legislative Assembly of Maharashtra
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"
5"ECI"
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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
Prabhu was appointed as the Chief Whip of the SSLP.
4. 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.
5. 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.
6. 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
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
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"
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF
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7. 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.
9. 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
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.
10. On 22 June 2022, Mr. Sunil Prabhu issued individual
communications to all MLAs of the Shiv Sena, calling upon them to
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."
The meeting on 22 June 2022, too, was not attended by many
MLAs of the Shiv Sena including Mr. Eknath Shinde.
11. 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:
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a.
A meeting of forty-five MLAs of the Shiv Sena was held
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
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.
12. 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
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."
13. 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:
"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."
14. Separately, Mr. Sunil Prabhu filed petitions for the
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.
15. On 28 June 2022, the then Leader of Opposition Mr. Devendra
Fadnavis addressed a letter to the Governor inter alia conveying that
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF
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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
the House.
16. 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.