SUBHASH DESAI versus PRINCIPAL SECRETARY, GOVERNOR OF MAHARASHTRA & ORS.

Summary

Deciding challenges arising from the Maharashtra political crisis, the Constitution Bench held the Governor’s floor-test direction unjustified and the Speaker’s recognition of the Shinde faction’s Whip and Leader unlawful. It declined to restore the Thackeray government after his voluntary resignation and upheld the subsequent invitation to Shinde to form government. Disqualification petitions remained for the Speaker; the correctness of Nabam Rebia was referred to seven judges, with an interim procedure prescribed.

Issues

1. Whether a notice seeking the Speaker’s removal disables adjudication of disqualification petitions.
2. Whether the Supreme Court should decide disqualification petitions at first instance and whether pending petitions invalidate intervening legislative proceedings.
3. Whether the political party or legislature party appoints the Whip and Leader, and whether their recognition is judicially reviewable.
4. How disqualification proceedings and rival-party claims before the Election Commission operate concurrently.
5. What follows from deletion of the split defence in the Tenth Schedule.
6. Whether the Governor lawfully directed a floor test and whether the former government could be restored.
7. Whether pending disqualification proceedings barred Shinde’s appointment as Chief Minister.

Provisions considered

• Article 179(c), read with Articles 180 and 181, Constitution of IndiaThe correctness of Nabam Rebia on the effect of a removal notice was referred to seven judges. Pending that decision, the Speaker may determine objections to jurisdiction, examine the bona fides and procedural validity of the removal motion, and adjourn or proceed subject to judicial review. (¶¶ 48, 59, 60, 65, 66, 67, 70, 71, 72)
• Tenth Schedule, paragraphs 6 and 8, Constitution of IndiaThe Speaker is ordinarily the initial adjudicator of disqualification, following prescribed procedure and natural justice. No exceptional circumstances justified Supreme Court adjudication or replacement by the Deputy Speaker here; pending petitions must be decided within a reasonable period. (¶¶ 74, 75, 76, 79, 80, 85, 206)
• Articles 190(3), 191(2) and 189(2), Constitution of IndiaMembers retain participation rights until disqualified. The decision and its consequences operate prospectively; adjudication examines the earlier alleged conduct and available defences. Intervening proceedings are not contingent on that decision, and Article 189(2) was unnecessary to sustain them here. (¶¶ 88, 89, 91, 92, 93, 195, 200, 203)
• Tenth Schedule, paragraphs 1 and 2(1), Constitution of IndiaThe political party appoints the Whip and Leader and authorises voting directions. The Speaker must determine the relevant party and its authority by reference to its constitution and leadership structure, rather than merely the legislative majority. (¶¶ 102, 105, 109, 111, 119, 120, 121, 122, 123, 124, 167, 168, 169)
• Article 212, Constitution of IndiaThe bar concerning procedural irregularity does not exclude review for substantive illegality or constitutional violation. Recognition of a Whip contrary to the Tenth Schedule is reviewable because party authorisation is essential to the anti-defection scheme. (¶¶ 95, 96, 98, 99, 100, 101, 114, 119)
• Schedule I, clause 23, explanation, Maharashtra Legislature Members (Removal of Disqualification) Act, 1956The definition of Chief Whip or Whip refers to declaration by the political party and recognition by the Speaker. It supports the conclusion that a legislature-party faction cannot appoint the Whip independently of the political party. (¶¶ 108, 109, 111, 123)
• Paragraph 15, Election Symbols (Reservation and Allotment) Order, 1968The Commission and Speaker may proceed concurrently for their distinct purposes. The Commission may adopt a suitable objective test beyond legislative majority; its recognition operates prospectively and does not retrospectively determine earlier alleged defections. (¶¶ 135, 139, 143, 148, 150, 151, 153, 154, 155, 156, 157, 158, 206)
• Tenth Schedule, omitted paragraph 3 and paragraphs 2, 4 and 5, Constitution of IndiaA split no longer supplies a defence. A faction’s assertion that it is the original party cannot revive that defence; protection must be found in the surviving provisions. The Speaker may identify the party prima facie for deciding disqualification without binding the Commission. (¶¶ 160, 161, 162, 163, 164, 165, 166, 167, 168, 169)
• Articles 163 and 174, Constitution of IndiaA discretionary floor-test direction requires relevant objective material and cannot resolve internal party disputes. The communications relied upon did not establish withdrawal of support or justify this direction; security complaints and disputes over legislative leadership were extraneous. (¶¶ 173, 176, 177, 178, 179, 180, 181, 184, 185, 186, 188, 189, 190, 191, 192, 193)
• Article 164(1) and (1B), Constitution of IndiaThe ministerial bar arises upon the Speaker’s disqualification decision, not merely upon a pending petition. Following Thackeray’s resignation, the support communicated for Shinde justified the Governor’s invitation to him to form government. (¶¶ 197, 198, 199, 200, 203, 204, 205)

Held

• Nabam Rebia did not govern these facts: the Deputy Speaker had proceeded despite the removal notice, and the Supreme Court’s interim order only extended time to respond rather than restraining adjudication. Its correctness nevertheless raised substantial questions warranting reference to seven judges. Pending that decision, the Speaker may decide jurisdictional objections, examine whether the removal motion is bona fide and procedurally proper, and adjourn or proceed. Either jurisdictional decision is judicially reviewable without the usual bar on a premature challenge. (¶¶ 59, 62, 63, 64, 65, 66, 67, 70, 71, 72)
• The Court declined to determine disqualification at first instance. Neither the circumstances of the Speaker’s election nor the challenged recognition decision justified bypassing the constitutionally designated adjudicator. The duly elected Speaker, rather than the Deputy Speaker, must decide the petitions fairly and within a reasonable period, subject to judicial review. (¶¶ 74, 75, 76, 79, 80, 82, 85, 206)
• An MLA may participate in legislative proceedings, including a floor test, while disqualification is pending. Although the Speaker evaluates conduct and defences as they existed at the relevant earlier time, the decision and its consequences are prospective. Intervening House proceedings are not subject to that eventual decision; Narwekar’s election was not invalid merely because participating MLAs faced disqualification petitions. (¶¶ 88, 89, 91, 92, 93, 195, 200, 203, 206)
• The political party appoints the Whip and Leader and authorises voting directions. The Speaker’s recognition of Gogawale and Shinde based on a faction’s resolution, without identifying the political party’s authority, was unlawful. Choudhari’s earlier recognition was valid on the material then available. The Speaker must enquire into the party constitution and recognise those duly authorised. Article 212 does not shield substantive illegality or constitutional violation in this exercise. (¶¶ 95, 96, 99, 100, 109, 111, 114, 119, 121, 122, 123, 124, 206)
• The Speaker and Election Commission may adjudicate concurrently; neither proceeding must await the other. The Commission is not confined to legislative majority and must use a test suited to the dispute, considering appropriate organisational or constitutional material while avoiding subjective judgments on rival political approaches. Their decisions serve different purposes and need not coincide. (¶¶ 139, 143, 148, 149, 150, 151, 153, 154, 156, 206)
• The Commission’s recognition operates prospectively. Where its petition follows the alleged prohibited conduct, that later decision cannot determine earlier disqualification retrospectively. Disqualification from the House does not automatically expel a member from the party and therefore does not itself remove standing to approach the Commission. The Court expressed no opinion on the merits of the separate challenge to the Commission’s Shiv Sena decision. (¶¶ 129, 155, 156, 157, 158)
• Deletion of paragraph 3 abolished the split defence. Neither faction can avoid disqualification simply by claiming to constitute the original party; an available defence must arise under the surviving Tenth Schedule provisions. The Speaker must identify the party prima facie for this limited adjudication, considering the pre-dispute constitution submitted to the Commission and the leadership structure outside the Assembly, rather than blindly counting MLAs. (¶¶ 161, 162, 163, 164, 165, 166, 167, 168, 169)
• The Governor lacked relevant objective material to require Thackeray to prove his majority. Intra-party dissatisfaction did not establish withdrawal of legislative support; security complaints and leadership disputes did not establish loss of confidence, and opposition requests alone were insufficient. A floor test cannot be used to settle internal party disputes. The Governor’s discretion is limited and judicially reviewable. (¶¶ 176, 177, 181, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 206)
• Despite the unlawful floor-test direction, restoration of the former government was unavailable because Thackeray voluntarily resigned without facing the test. The Court could not quash that voluntary resignation; its earlier reservation that a trust vote would abide the petitions’ outcome had no application because that vote never occurred. (¶¶ 170, 194, 206)
• A pending disqualification petition did not trigger Article 164(1B) or bar Shinde’s appointment. If the Speaker disqualified him, the constitutional ministerial bar would follow for its prescribed duration. After Thackeray’s resignation created a vacancy, the communications extending legislative support justified the Governor’s invitation to Shinde. The writ petitions and pending applications were disposed of with the stated conclusions and directions. (¶¶ 197, 198, 199, 200, 203, 205, 206, 207, 208)

Result

Writ petitions disposed of. Speaker directed to decide disqualification petitions within a reasonable period and enquire into party-authorised Whip and Leader; recognition communicated on 3 July 2022 held unlawful. Floor-test direction unjustified, but Thackeray government not restored; invitation to Shinde upheld. Nabam Rebia question referred to seven judges with interim procedure pending decision.