Subhash Desai vs Principal Secretary, Governor of Maharashtra & Ors.

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 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 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 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 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 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 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 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]

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.