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2023 Supreme(SC) 500

SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, CJI., M.R. SHAH, KRISHNA MURARI, HIMA KOHLI, PAMIDIGHANTAM SRI NARASIMHA, JJ.
Subhash Desai – Appellant
Versus
Principal Secretary, Governor of Maharashtra & Ors. - Respondents
Writ Petition (C) No. 469 of 2022, Writ Petition (C) No. 468 of 2022, With Writ Petition (C) No. 470 of 2022, Writ Petition (C) No. 479 of 2022, Writ Petition (C) No. 538 of 2022, Writ Petition (C) No. 493 of 2022
Decided on : 11-05-2023

Advocates appeared:
For the Petitioner(s): Mr. Kapil Sibal, Sr. Adv. Dr. Abhishek Manu Singhvi, Sr. Adv. Mr. Devadatt Kamat, Sr. Adv. Mr. Amit Anand Tiwari, Adv. Mr. Rohit Sharma, Adv. Mr. Rajesh Inamdar, Adv. Mr. Javedur Rahman, Adv. Mr. Nizam Pasha, Adv. Mr. Anish R. Shah, AOR Mr. Harsh Pandey, Adv. Mr. Revanta Solanki, Adv. Mr. Amit Bhandari, Adv. Mr. Sunny Jain, Adv. Mr. Nishant Patil, Adv. Ms. Devyani Gupta, Adv. Ms. Tanvi Anand, Adv. Ms. Aprajita Jamwal, Adv. Mr. Kapil Sibal, Sr. Adv. Mr. Nishant Patil, Adv. Mr. Abhishek Manu Singhvi, Sr. Adv. Mr. Devadatt Kamat, Sr. Adv. Mr. Rohit Sharma, Adv. Mr. Amit Anand Tiwari, Adv. Mr. Javedur Rahman, AOR Mr. Rajesh Inamdar, Adv. Mr. Sunny Jain, Adv. Mr. Dharmendra Mishra, Adv. Mr. Amit Bhandari, Adv. Mr. Nizam Pasha, Adv. Mr. Harsh Pandey, Adv. Mr. Revanta Solanki, Adv. Mr. Siddharth Kaushik, Adv. Ms. Aparajita Jamwal, Adv. Mr. Nikhil Purohit, Adv. Mr. Ashok Kumar, Adv. Ms. Devyani Gupta, Adv. Ms. Tanvi Anand, Adv. Mr. Siddharth Seem, Adv. Mr. L. Nidhiram Sharma, Adv. Mr. Aman Sharma, Adv. Mr. Ashima Chauhan Singh, Adv. Mr. Mudassir, Adv. Mr. Neeraj Kishan Kaul, Sr. Adv. Mr. Maninder Singh, Sr. Adv. Mr. Siddharth Bhatnagar, Sr. Adv. Mr. Abhikalp Pratap Singh, AOR Mr. Abhay Anturkar, Adv. Mr. Parbhas Bajaj, Adv. Mr. Dhruv Sharma, Adv. Ms. Ira Mahajan, Adv. Mr. Raghav Agrawal, Adv. Mr. Toshiv Goyal, Adv. Ms. Manmeet Kaur Sareen, Adv. Mr. Navneet R, Adv. Ms. Shreya Saxena, Adv. Ms. Yamini Singh, Adv. Ms. Pritha Suri, Adv. Mr. Rangsar An Mohan, Adv. Mr. Ramchandr Madan, Adv. Ms. Vijetha Ravi, Adv. Mr. Ajay Sabharwal, Adv. Mr. Harish Salve, Sr. Adv. Mr. Neeraj Kishan Kaul, Sr. Adv. Mr. Mahesh Jethmalani, Sr. Adv. Mr. Maninder Singh, Sr. Adv. Mr. Siddharth Bhatnagar, Sr. Adv. Ms. Malvika Trivedi, Sr. Adv. Mr. Chirag J Shah, Adv. Mr. Utsav Trivedi, Adv. Mr. Ravi Sharma, Adv. Mr. Himanshu Sachdeva, Adv. Ms. Manini Roy, Adv. Ms. Shivani Bhushan, Adv. Mr. Piyush Tiwari, Adv. Ms. Chaitali Jugran, Adv. Ms. Kanjani Sharma, Adv. Mr. Nihar Thackeray, Adv. Ms. Mugdha Pande, Adv. Mr. Ajay Awasthi, Adv. Mr. Prabhash Bajaj, Adv. Ms. Ira Mahajan, Adv. Mr. Dhruv Sharma, Adv. Mr. Navneet R, Adv. Ms. Srishti Kumar, Adv. Mr. Kumar Sumit, Adv. Mr. Raghav Agarwal, Adv. Ms. Pracheta Kar, Adv. Mr. Aditya Sidhra, Adv. Mr. Nadeem Afroz, Adv. Ms. Sujal Gupta, Adv. Mr. Wedo Khalo, Adv. Mr. Biswaksen Panda, Adv. M/s. Tas Law
For the Respondent(s): Mr. Pai Amit, AOR Ms. Pankhuri Bhardwaj, Adv. Mr. Abhiyudaya Vats, Adv. Ms. Ranu Purohit, Adv. Ms. Bhavana Duhoon, Adv. Ms. Astha Prasad, AOR Ms. Rukhmini Bobde, Adv. Ms. Trishala Trivedi, Adv. Mr. Ankit Ambasta, Adv. Mr. Chirag Gupta, Adv. Mr. Ajit Pravin Wagh, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Bharat Bagla, Adv. Mr. Sourav Singh, Adv. Mr. Neeraj Kishan Kaul, Sr. Adv. Mr. Maninder Singh, Sr. Adv. Mr. Siddharth Bhatnagar, Sr. Adv. Mr. Abhikalp Pratap Singh, AOR Mr. Abhay Anturkar, Adv. Mr. Prabhas Bajaj, Adv. Mr. Dhruv Sharma, Adv. Ms. Ira Mahajan, Adv. Mr. Raghav Agrawal, Adv. Mr. Toshiv Goyal, Adv. Ms. Manmeet Kaur Sareen, Adv. Ms. Manmeet Kaur, Adv. Mr. Navneet R, Adv. Mr. Shreya Saxena, Adv. Ms. Shreya Saxena, Adv. Ms. Yamini Singh, Adv. Ms. Pritha Suri, Adv. Mr. Rangsaran Mohan, Adv. Mr. Ramchandran Madan, Adv. Mr. Ramchandra Madan, Adv. Ms. Vijetha Ravi, Adv. Mr. Ajay Sabharwal, Adv. Mr. Dhruv Tank, Adv. Mr. Harish Salve, Sr. Adv. Mr. Neeraj Kishan Kaul, Sr. Adv. Mr. Mahesh Jethmalani, Sr. Adv. Mr. Maninder Singh, Sr. Adv. Mr. Siddharth Bhatnagar, Sr. Adv. Ms. Malvika Trivedi, Sr. Adv. Mr. Chirag J Shah, Adv. Mr. Utsav Trivedi, Adv. Mr. Ravi Sharma, Adv. Mr. Himanshu Sachdeva, Adv. Ms. Manini Roy, Adv. Ms. Shivani Bhushan, Adv. Mr. Nihar Thackeray, Adv. Mr. Piyush Tiwari, Adv. Ms. Ira Mahajan, Adv. Mr. Dhruv Sharma, Adv. Mr. Raghav Agarwal, Adv. Ms. Mugdha Pande, Adv. Mr. Ajay Awasthi, Adv. Mr. Prabhash Bajaj, Adv. Mr. Navneet R, Adv. Ms. Srishti Kumar, Adv. Mr. Kumar Sumit, Adv. Ms. Chaitali Jugran, Adv. Ms. Kanjani Sharma, Adv. Ms. Pracheta Kar, Adv. Mr. Aditya Sidhra, Adv. Mr. Nadeem Afroz, Adv. Ms. Sujal Gupta, Adv. Mr. Wedo Khalo, Adv. Mr. Biswaksen Panda, Adv. M/s. Tas Law Mr. Javedur Rahman, AOR Mr. Ankit Yadav, AOR Ms. Prakriti Rastogi, Adv. Mr. Tushar Mehta, SG Mr. K.M. Nataraj, ASG Mr. Kanu Agarwal, Adv. Mr. Rajat Nair, Adv. Mr. Anirudh Bhat, Adv. Mr. Akshit Pradhan, Adv. Mr. Shreeyash U Lalit, Adv. Ms. Ruchi Gour Narula, Adv. Mr. Arvind Kumar Sharma, AOR Mr. T. R. B. Sivakumar, AOR Mr. Shreyas Gacche, Adv. Mr. Rajsaheb Patil, Adv. Mr. Supriya Wankhede, Adv. Mr. Sudarshan Kute, Adv. Mr. Ashok Kumar Gupta Ii, AOR Mr. Kailash Prashad Pandey, AOR Mr. Mahendra Kawchale, Adv. Mr. Vijay Pal, Adv. Mr. Pramod Kumar Singh, Adv. Mr. Anil Kumar, Adv. Mr. Umang Tripathi, Adv. Mr. Deepankar, Adv. Ms. Rekha Agarwal, Adv. Mr. Karunesh Kumar Shukla, Adv. Mr. Amit Garg, Adv. Mr. Firasat Ali Siddiqi, Adv. Mr. Kundan Lal Gupta, Adv. Mr. Vimal Kishore Rastogi, Adv. Dr. A.P. Singh, Adv. Mr. V.P. Singh, Adv. Mrs. Richa Singh, Adv. Mrs. Geeta Chauhan, Adv. Mr. Sadashiv, AOR Mr. Aaditya Aniruddha Pande, AOR Mr. Bharat Bagla, Adv. Mr. Sourav Singh, Adv. Mr. Pankaj Kuma Singh, Adv. Mr. Mukesh Verma, Adv. Mr. Pawan Kumar Shukla, Adv. Mr. Kamal Kumar Pandey, Adv. Mr. S.C. Tripathi, Adv. Mr. Gaurav Belsare, Adv. Mr. Manindra Dubey, Adv. Mr. Raj Singh Rana, AOR Mrs. Pragya Verma, Adv.

IMPORTANT POINTS
(1) Political imbroglio in State Legislature of Maharashtra – Supreme Court cannot ordinarily adjudicate petitions for disqualification under Tenth Schedule in first instance. There are no extraordinary circumstances in instant case that warrant exercise of jurisdiction by Supreme Court to adjudicate disqualification petitions. Speaker must decide disqualification petitions within a reasonable period.
(2) An MLA has right to participate in proceedings of House regardless of pendency of any petitions for their disqualification. Validity of proceedings of House in interregnum is not “subject to” outcome of disqualification petitions.
(3) Political party and not legislature party appoints Whip and Leader of party in House. Direction to vote in a particular manner or to abstain from voting is issued by political party and not legislature party. Decision of Speaker as communicated by Deputy Secretary to Maharashtra Legislative Assembly dated 3rd July 2022 is contrary to law. Speaker shall recognize Whip and Leader who are duly authorised by Shiv Sena political party with reference to provisions of party constitution, after conducting an enquiry in this regard and in keeping with principles discussed in this Judgment.
(4) Speaker and ECI are empowered to concurrently adjudicate on petitions before them under Tenth Schedule and under Paragraph 15 of Symbols Order respectively.
(5) While adjudicating petitions under Paragraph 15 of Symbols Order, ECI may apply a test that is best suited to facts and circumstances of case before it.
(6) Effect of deletion of Paragraph 3 of Tenth Schedule is that defence of ‘split’ is no longer available to members facing disqualification proceedings. Speaker would prima facie determine who political party is for the purpose of adjudicating disqualification petitions under Paragraph 2(1) of Tenth Schedule, where two or more factions claim to be that political party.
(7) Governor was not justified in calling upon Mr. Thackeray to prove his majority on floor of House because he did not have reasons based on objective material before him, to reach conclusion that Mr. Thackeray had lost confidence of House. However, status quo ante cannot be restored because Mr. Thackeray did not face floor test and tendered his resignation.
(8) Governor was justified in inviting Mr. Shinde to form Government.
(9) Correctness of decision in Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, reported in (2016) 8 SCC 1 referred to a larger Bench of Seven Judges.

Headnote:(A) Constitution of India - Article 32, Article 163, Article 179(c), Tenth Schedule - Political dispute in Maharashtra - Change in government amidst factions in Shiv Sena - Validity of proceedings including trust vote conducted under Governor's directive - Court asserted that Speaker must adjudicate disqualification petitions per Tenth Schedule and constitution - It ruled that disqualification does not automatically bar a member from participating until decided by the Speaker. (Paras 170-206)

(B) Justiciability of legislative proceedings - The Governor's discretion to call for a floor test evaluated on existing material, not subjective satisfaction. It emphasized the urgency of adhering to constitutional duties without impacting intra-party disputes. (Paras 170-181)

(C) Power of party authorities - Court distinguished between political party and legislature party, stating only the political party can appoint a Whip or Leader, reiterating that these roles must be defined by the political party's constitution. (Paras 94-113)

Facts of the case:
The judgment stemmed from six writ petitions regarding disputes following the fall of the Shiv Sena government in Maharashtra due to factional divides, focusing on the legitimacy of leadership roles and disqualification petitions.

Findings of Court:
The Court found the Governor's basis for calling a trust vote lacking objective material and ultimately stated that the Speaker has the jurisdiction to adjudicate disqualification petitions.

Issues: The main issues revolved around the authority of the Governor in calling a trust vote, disqualification proceedings concerning members of the legislature, and which faction legitimately constituted the Shiv Sena.

Ratio Decidendi: The Court reasoned that the Speaker retains exclusive authority to determine disqualification under the Tenth Schedule, and that legislative proceedings should continue despite pending disqualification petitions, reinforcing the integrity of constitutional processes.

Result: The petitions were disposed of with various directives regarding future proceedings and the legal status of leadership within the Shiv Sena.

Judgement Key Points

Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!)

What is the scope of the Supreme Court's power to decide disqualification petitions under the Tenth Schedule at the first instance?

What is the proper forum and sequence for adjudicating disqualification petitions versus proceedings under the Symbols Order (Paragraph 15) and floor- testing/governor’s actions?

How does the deletion of Paragraph 3 of the Tenth Schedule affect the availability of the ‘split’ defence and the role of the Speaker in determining the political party for disqualification purposes?


Table of Contents

1. Does the ruling in Nabam Rebia apply when the Deputy Speaker is discharging the functions of the Speaker and a notice of intention to move a resolution for removal is pending?

No. The Deputy Speaker was discharging functions only because the Speaker's office was vacant. After the election of a new Speaker, the Deputy Speaker was no longer required to discharge those functions. The circumstances in Nabam Rebia — where the Speaker was under a removal notice while adjudicating disqualification petitions — do not arise here. (Para 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 )

2. Is the Speaker the appropriate constitutional authority to adjudicate disqualification petitions under the Tenth Schedule?

Yes. The Speaker embodies propriety and impartiality and is the repository of adjudicatory powers under the Tenth Schedule. Courts should not decide disqualification petitions at first instance. The Speaker must decide by following the procedure prescribed in the Tenth Schedule and the 1986 Rules. (Para 74 , 75 , 76 , 81 , 82 , 83 , 84 , 85 )

3. Was the Governor justified in calling for a floor test and inviting Eknath Shinde to form the government?

No. The Governor must base the exercise of discretion on objective material indicating loss of confidence of the House. The communications relied upon expressed only factional dissatisfaction, not withdrawal of support. The Governor cannot act on inferences drawn from intra-party disputes. (Para 170 , 171 , 172 , 182 , 183 , 184 , 185 , 186 , 187 , 188 , 189 , 190 , 191 , 192 , 193 )

4. Must the Speaker recognize only the Whip and Leader appointed by the political party, not by a faction of the legislature party?

Yes. The Tenth Schedule, 1986 Rules, and Act of 1956 indicate that the direction to vote arises from the political party. The Speaker must recognize only the Whip and Leader duly authorized by the political party after conducting an inquiry. Recognition based on a faction's resolution without determining political party authorization is illegal. (Para 102 , 103 , 104 , 105 , 106 , 107 , 108 , 109 , 110 , 111 , 112 , 113 , 114 , 118 , 119 , 120 , 121 , 122 , 123 , 124 )

5. Does Article 164(1B) bar the appointment of an MLA as Chief Minister when disqualification petitions under the Tenth Schedule are pending?

No. Article 164(1B) bars appointment only when the MLA has actually been disqualified under Paragraph 2 of the Tenth Schedule. The mere institution of a disqualification petition does not trigger the bar. The bar operates only upon the Speaker returning a verdict of disqualification. (Para 198 , 199 , 200 , 202 , 203 )

JUDGMENT :

DHANANJAYA Y CHANDRACHUD, CJI.

Table of Contents

A. Factual Background

i. A change in the government of the State of Maharashtra

ii. The election of the Speaker

iii. The proceedings before the Election Commission of India

B. Overview of the reliefs sought in the present proceedings

C. The reference

D. Submissions

i. Submissions on whether Nabam Rebia’s case ought to be referred to a larger Bench

ii. Submissions on the merits of the case

E. Analysis

i. Reference of Nabam Rebia’s case to a larger Bench

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

iv. The power to appoint the Whip and the Leader of the Legislature Party

a. The bar under Article 212: justiciability of legislative proceedings

b. The power to appoint the Whip and the Leader of the legislature party

I. ‘Political party’ and ‘legislature party’ are distinguishable concepts.

II. Literal and purposive interpretation of the provisions of the Tenth Schedule, the 1986 Rules, and the Act of 1956

v. Deciding who the “real” Shiv Sena is

a. The purpose of the Tenth Schedule and the effect of disqualification

b. The purpose of the Symbols Order and the effect of the decision under Paragraph 15

c. The test(s) applicable to disputes under Paragraph 15 of the Symbols Order

d. The potential for complications in the present case

e. Harmonising the Tenth Schedule with Paragraph 15 of the Symbols Order

vi. The impact of the deletion of Paragraph 3 of the Tenth Schedule

a. The defence of a ‘split’ is no longer available to members who face disqualification proceedings

b. The decision of the Speaker under Paragraph 2 of the Tenth Schedule

vii. The exercise of discretion by the Governor in directing Mr. Thackeray to face a floor test

a. The power of the Governor to call for a floor test

b. The Governor’s exercise of the power to call for a floor test

viii. The exercise of discretion by the Governor in inviting Mr. Shinde to be the Chief Minister

a. Mr. Shinde’s appointment is not barred by Article 164(1B) of the Constitution

b. The Governor did not exceed the scope of his authority

F. Conclusions

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[“NCP”] the Indian National Congress, 2 [“INC”] and certain independent Members of the Legislative Assembly3[“MLA”] formed the 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[“BJP”] 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[“ECI”] recognizes the Shiv Sena as a state political party. The organizational election of the party for the ter


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Cases Referred (24)
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D. Sanjeevayya v. Election Tribunal

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Delhi Admn. v. Gurdip Singh Uban

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Indore Development Authority v. Manohar Lal (2020) 8 SCC 129 [Para 41]

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Justice KS Puttaswamy v. Union of India (Aadhar 5J)

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Keisham Meghachandra Singh v. Hon’ble Speaker Manipur Legislative Assembly (2020) SCC OnLine SC 55 [Para 84]

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Kihoto Hollohan v. Zachillhu

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Kshetrimayum Biren Singh v. Hon’ble Speaker

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Kuldip Nayar v. Union of India (2006) 7 SCC 1 [Para 112]

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Mayawati v. Markandeya Chand (1998) 7 SCC 517 [Para 40]

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Nabam Rebia & Bamang Felix v. Deputy Speaker

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Pradeep S Wodeyar v. State of Karnataka

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Pratap Gouda Patil v. State of Karnataka (2019) 7 SCC 463 [Para 43]

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Raja Ram Pal v. Hon’ble Speaker

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Rajendra Singh Rana v. Swami Prasad Maurya

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Ramdas Athawale v. Union of India

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Rameshwar Prasad v. Union of India (2006) 2 SCC 1 [Para 40]

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Rojer Mathew v. South Indian Bank Ltd.

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Sadiq Ali v. Election Commission of India (1972) 4 SCC 664 [Para 42]

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Shivraj Singh Chouhan v. Union of India (2020) 17 SCC 1 [Para 44]

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Shrimanth Balasaheb Patil v. Speaker, Karnataka Legislative Assembly

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Speaker, Haryana Vidhan Sabha v. Kuldeep Bishnoi

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SR Bommai v. Union of India (1994) 3 SCC 1 [Para 41]

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State of UP v. Desh Raj

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Taxi Owners United Transport v. State Transport Authority (Orissa)

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