Maharashtra Political Crisis Judgment: A Detailed Analysis

As we present this exhaustive explainer on the judgment in Subhash Desai versus Principal Secretary, Governor of Maharashtra and Ors, one thing is clear, former Maharashtra Chief Minister Uddhav B. Thackeray may not have got the relief he was seeking, but the pot has been stirred hard and deep, and with the court deciding to refer its earlier judgment in Nabam Rebia, & Bamang Felix versus Deputy Speaker, Arunachal Pradesh Legislative Assembly to a seven-judge Constitution Bench, this matter has all the ingredients of a major churning in the constitutional history of India.

IN a much-awaited and significant judgment, which the Supreme Court itself termed as one that will have “serious ramifications on the polity” of India, a Constitution Bench of the court today unanimously decided to refer its judgment in Nabam Rebia, & Bamang Felix versus Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) to a larger Bench. 

The Bench, comprising Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justices Hima Kohli, M.R. Shah, Krishna Murari and P.S. Narasimha, in a batch of petitions in Subhash Desai versus Principal Secretary, Governor of Maharashtra and Ors, has observed: “[W]e are based on the view that the decision in Nabam Rebia merits reference to a larger Bench because the substantial question of law remains to be settled”.

The court stated that the prima facie reason for reaching the conclusion for the reference are the non-consideration of the following two aspects in Nabam Rebia:

1. Whether the temporary disablement of the functions of the speaker under the Tenth Schedule is prone to misuse by members of legislative assembly (MLAs) who anticipate that the disqualification petitions will be instituted against them, or by MLAs against whom disqualification petitions have been instituted. 
2. Whether a constitutional hiatus in the operation of the Tenth Schedule ensues because of the temporary disablement of the speaker.

The Bench was to decide, amongst other issues, the correctness of its judgment in Nabam Rebia— wherein it was observed that the speaker should refrain from deciding on the disqualification petitions whilst his position under the Tenth Schedule is under challenge— and whether the judgment needs to be referred to a seven-judge Constitution Bench.

Also read: The Maharashtra Governor’s Actions Were Mystifying: P D T Achary, former Secretary-General, Lok Sabha

The court has decided to refer the following issue to a Constitution Bench of seven judges: “Whether the issuance of notice of intention to move a resolution for the removal of the speaker restrains them from adjudicating on the disqualification petitions under the Tenth Schedule?”

The court has further observed that pending the decision of the larger Bench, as an interim measure, the adoption of the following procedure may subserve the objective of the Tenth Schedule, Symbols (Reservation and Allotment) Order, 1968 (Symbols Order) as well as Article 179(c) (vacation and resignation of, and removal from, the offices of Speaker and Deputy Speaker), as they may provide some amount of certainty and clarity. 

The following are the procedures suggested by the court as interim measures:

• The investiture of exclusive adjudicatory jurisdiction upon the speaker to determine the complaints under the Tenth Schedule will entitle the speaker to rule upon and decide applications questioning their jurisdiction; and 

1. 1. The speaker is entitled to rule on applications which require them to refrain from adjudicating proceedings under the Tenth Schedule on the ground of initiation of a motion for removal under Article 179(c). The speaker can examine if the application is bona fide or is intended to evade adjudication.
   2. If the speaker believes that the motion is well-founded, they may adjourn the proceedings under the Tenth Schedule till the decision of their removal is concluded. If they believe the motion is not as per the procedure contemplated under the Constitution read with relevant rules, they are entitled to reject the plea and proceed with the hearing.
   3. The decision of the speaker, either to adjourn the proceedings under the Tenth Schedule in view of the pending proceedings under Article 179(c) or to proceed with the hearing is subject to judicial review. The decision of the speaker relates to their jurisdiction, the bar of a quia timet action (interlocutory intervention) as contemplated under Kihoto Hollohan versus Zachillhu & Ors (1992) will not apply. In Kihoto Holloha, it was that no judicial review will lie at a stage prior to the making of the decision of the speaker unless he makes  disqualifications which likely have grave, immediate and irreversible repercussions and consequence.

The beginning of the crisis: Who rebelled against whom?

The Maharashtra political crisis started in June 2022, when the current Chief Minister Eknath S. Shinde and a larger number of other MLAs from the Shiv Sena rebelled against then Chief Minister Uddhav B. Thackeray in the Maharashtra Vidhan Sabha, eventually leading to the end of Maha Vikas Aghadi (MVA) government, comprising of the Shiv Sena, the Nationalist Congress Party and the Indian National Congress)

Certain members of the MVA government led by Shinde cross-voted in member of legislative council (MLC) polls on June 20, compelling Thackeray to call an emergency meeting of party legislators. Shinde, along with 40 members of the MLAs escaped to Guwahati via Surat. 

The crisis started when certain members of the MHA government led by Shine cross-voted in member of legislative council (MLC) polls on June 20, compelling Thackeray to call an emergency meeting of party legislators.

On June 23,  these MLAs declared Shinde the leader of the Shiv Sena. Meanwhile, back in Maharashtra, treating anti-party activities as ‘voluntarily’ giving up membership of the political party, Thackeray issued 16 disqualification notices, including against Shinde, through deputy speaker Narhari Sitaram Zirwal on June 25, 2022, under Paragraph 2(1)(a) of the Tenth Schedule. 

The legislators were given two days to respond to these notices. However, the Shinde-led faction challenged the notices before the Supreme Court on June 26 on the grounds that a no-confidence motion for the removal of the deputy speaker had been moved and the deputy speaker could not decide on the disqualification petitions whilst himself being under the cloud of removal. The time period of two days given to respond to the disqualification petitions was also challenged for being too little.

In an unusual non-speaking order on June 27, 2022, the vacation Bench of the Supreme Court comprising Justices Surya Kant and J.B. Pardiwala stayed the disqualification proceedings, and gave 12 days to the 16 legislators, led by Shinde, to respond to the notices. This order created controversy because a Constitution Bench of the Supreme Court, in its landmark judgment in Kihoto Hollohan, had held that it could not interfere in the jurisdiction of a speaker, except when there is an interim disqualification, as that would mean disqualification per se. 

On June 24, a no-confidence motion was moved by the rebel MLAs against the deputy speaker (the seat of the speaker was incumbent). The deputy speaker rejected the notice of his removal on the ground that it came from an unidentified email and the genuineness of the signatures annexed to it could not be ascertained. 

The next day, the Shinde faction, and then leader of the opposition in the Maharashtra assembly, Bharatiya Janata Party’s Devendra Fadvanis, requested then governor Bhagat Singh Koshyari to direct a floor test in the assembly. Koshyari ordered the floor test to be held on the morning of June 30.

This was challenged by the Thackeray-led government in the Supreme Court but in vain. On June 29, the Supreme Court refused to interfere and did not stay the floor test. Later that day, Thackeray resigned from chief ministership and Shinde staked a claim to form a government. Shinde was sworn in as the Chief Minister on June 30.

Apart from the Thackeray faction’s petitions relating to the disqualification proceedings against the rebel faction’s MLAs, a writ petition was filed by then general secretary of the Thackeray-led Shiv Sena, Subhash Desai, challenging the governor’s invitation to Shinde to form the government. Desai’s petition also contested the election of the new speaker, Rahul Narwekar, and his subsequent recognition of Bharatshet Gogawale as the chief whip of the rebel faction of Shiv Sena, instead of Thackeray’s nominee Sunil Prabhu.

What happened when the petitioners were heard?

The batch of petitions was heard by a Bench led by former CJI N.V. Ramana and Justices Murari and Kohli. The Bench, in its August 23, 2022 order, observed that the batch of petitions raises important constitutional questions on the interpretation of the Tenth Schedule.

Also read: Shiv Sena challenges Maharashtra Governor’s invitation to Eknath Shinde to form government in Supreme Court

The Bench formulated the following ten questions to be answered by a five-judge Constitution Bench:

1. Whether notice for removal of a speaker restricts him from continuing with disqualification proceedings under the Tenth Schedule of the Constitution, as held by the Supreme Court in Nebam Rebia?
2. Whether a petition under Article 226 or Article 32 of the Constitution lies, inviting a decision on a disqualification petition by high courts or the Supreme Court, as the case may be?
3. Can a court hold that a member is ‘deemed’ to be disqualified, by virtue of their actions, absent a decision by the speaker?
4. What is the status of proceedings in the House during the pendency of disqualification petitions against the members?
5. If the decision of a Speaker that a member has incurred disqualification under the Tenth Schedule relates back to the date of the action complained of, then what is the status of proceedings that took place during the pendency of a disqualification petition?
6. What is the impact of the removal of Paragraph 3 of the Tenth Schedule?
7. What is the scope of the power of the speaker to determine the whip and the leader of the House legislature party? What is the interplay of the same with respect to the provisions of the Tenth Schedule?
8. Are intra­-party decisions amenable to judicial review? What is the scope of the same?
9. What is the extent of discretion and power of the governor to invite a person to form the government, and whether the same is amenable to judicial review?
10. What is the scope of the powers of the Election Commission of India (ECI) with respect to determination of a split within a party?

What was held in Nabam Rebia?

One of the questions pertaining to the power of the speaker or the deputy speaker to initiate disqualification proceedings, whilst proceedings on their removal are pending, concerned the reasoning laid down in Nabam Rebia.

The Constitution Bench of five judges in Nabam Rebia held: “We are … of the view that constitutional purpose and constitutional harmony would be maintained and preserved, if a speaker refrains from adjudication of a petition for disqualification under the Tenth Schedule, whilst his own position, as the Speaker, is under challenge. This would also allow [Article 179(c) and the Tenth Schedule] to operate in their individual constitutional space, without encroaching on the other.”

In Nabam Rebia, 21 legislators of the Indian National Congress in Arunachal Pradesh had rebelled against the then Chief Minister Nabam Tuki. Some members of the assembly had written to the governor to communicate their displeasure with the speaker and the state government.

The next day, the Shinde faction, and then leader of the opposition in the Maharashtra assembly, Bharatiya Janata Party’s Devendra Fadvanis requested then governor Bhagat Singh Koshyari to direct a floor test in the assembly.

The governor, without acting on the aid and advice of Tuki, moved the assembly session earlier in time and listed the removal of the speaker on the legislative agenda. Meanwhile, the speaker had disqualified the rebel legislators on the ground of defection. When the assembly met, a resolution for the speaker’s removal was adopted.

In Nabam Rebia, the court restored the status quo ante and held that the governor has no role to play in the removal of the speaker.

Three concurring judgments were delivered by Justice J.S. Khehar on behalf of himself, Justices P.C. Ghose and N.V. Ramana; by Justice Dipak Misra; and by Justice Madan B. Lokur.

In the judgment authored by Justice Khehar, the court had observed: “We are satisfied, that the words ‘passed by a majority of all the then members of the Assembly’, would prohibit the speaker from going ahead with the disqualification proceedings under the Tenth Schedule, as the same would negate the effect of the words ‘all the then members’, after the disqualification of one or more MLAs from the House. The words ‘all the then members’, demonstrate an expression of definiteness.”

Article 179(c) states that the speaker or deputy speaker may be removed from his office by a resolution of the assembly passed by a majority of “all the then members of the assembly”.

The court had further noted: “Any change in the strength and composition of the assembly, by disqualifying sitting MLAs, for the period during which the notice of resolution for the removal of the speaker (or the deputy speaker) is pending, would conflict with the express mandate of Article 179(c), requiring all ‘the then members’ to determine the right of the speaker to continue.”

In Justice Misra’s concurring opinion, he had observed: “When there is an expression of intention to move the resolution to remove him, it is requisite that he should stand the test and then proceed… It would be anathema to the concept of constitutional adjudication, if the speaker is allowed to initiate proceedings under the Tenth Schedule of the Constitution after the intention to remove him from his office is moved.”

While Justice Lokur had held that the “power or propriety of the speaker taking a decision under the Tenth Schedule of the Constitution with regard to the fourteen members of the legislative assembly does not at all arise in these appeals.”

Why did the Constitution Bench of five judges begin hearing the petitions in Subhash Desai on merits? 

On February 17, a Supreme Court Constitution Bench led by Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justices Hima Kohli, M.R. Shah, Krishna Murari and P.S. Narasimha, decided that the question as to whether reference to a seven-judge Bench of the court on the correctness of Nabam Rebia judgment was required, needed to be determined along with the merits of the instant case. The hearing began on February 21.

This came after the Bench had heard preliminary submissions from both sides a week earlier on whether Nabam Rebia imposes a disability on the function of a speaker of a legislative assembly as a ‘tribunal’ under the Tenth Schedule of the Constitution. The Bench remarked that the consequence of this judgment on both sides has “serious ramifications” on the polity of India.

What did the parties argue on merits in Nabam Rebia?

Senior advocate Kapil Sibal, for the Thackeray faction, argued that the reasoning in Nabam Rebia was wrong. They reasoned that the consequence of not allowing a speaker to perform their functions as tribunal, adjudicating rights under the Tenth Schedule, often leads to the toppling of legitimate governments, as happened in the case of Maharashtra. Sibal argued that the disability attached to the speaker starts when a fourteen days’ notice for their removal is issued by a legislator under Article 179(c). The House doesn’t need to be in session for such a notice to be issued.

According to Rule 11 of the Maharashtra Legislative Assembly Rules, after the expiration of the fourteen days’ notice period, the speaker will read the notice before the House and 10 percent of the majority membership (29 legislators for Maharashtra) must vote in its favour for a leave to be granted.

Within a period of seven days after the grant of a leave, the resolution against the speaker’s removal must be passed. If the speaker survives the motion, they can continue to decide on the disqualification petitions.

Sibal told the Bench that no constitutional authority can have a hiatus in its functioning. He referred to the second proviso of Article 179(c) of the Constitution which states that the speaker continues to perform its legislative functions even when the assembly has been dissolved. This section states that the speaker shall not vacate his office until immediately before the first meeting of the assembly after the dissolution. 

In Nabam Rebia, the court had restored the status quo ante and held that the governor has no role to play in the removal of the speaker.

Sibal suggested the proposition to the court that the notice to the speaker for their removal must only be issued when the assembly is in session. He also made an argument that the Constitution takes note of the possibility of the speaker acting in their own cause and makes a clear bifurcation in that regard, as has been done in Article 181 of the Constitution.

Article 181, which prescribes that the speaker or the deputy speaker must not preside while a resolution for their removal from the office is under consideration, states that the speaker has no role to play in a resolution for their removal unless there is equality of votes. Then they may exercise a casting vote.

The respondents, led by senior advocate Harish Salve, termed Nabam Rebia academic and opposed its reference to the larger Bench. Salve told the court the judgment would have applied had the former Chief Minister Thackeray gone through a trust vote, as it may have then raised some questions of law.

Senior advocate Neeraj Kishan Kaul, appearing for the rebel MLAs, stated that Nabam Rebia was based both on ethical and constitutional grounds. He argued that the decision of the speaker on the disqualification can be challenged before the court. But once a legislator loses his right to vote, the whole constituency suffers as the membership cannot be challenged before the court.

A legislator loses their membership in the House under Article 191(2) of the Constitution, if he is disqualified under the Tenth Schedule.

It was argued by Kaul that the disability attached to the functions of the speaker under the Tenth Schedule must apply on the date on which the notice for his removal has been issued. It is because the speaker may not make impartial decisions within the fourteen days’ notice period. They may thus alter the composition of the House to suit their own cause. This was the reasoning relied on by Justice Mishra in his judgment in Nabam Rebia, Kaul argued.

Kaul told the Bench that the interpretation of the Supreme Court in Nebam Rebia on “all the then members of the assembly” appearing in clause (c) of Article 179 is correct. In this context, the interpretation of “all the then members of the assembly” means that the composition of the House must not be altered.

In the Constituent Assembly debates, it was suggested that the term “all the then members of the assembly” should be substituted with “the members of the assembly present and voting”. However, the amendment was negatived.

What were the arguments of the parties on other questions apart from the challenge to the correctness of Nabam Rebia?

• Whether a petition under Article 226 or 32 lies inviting a decision on disqualification petitions by the court?

Apart from the correctness of Nabam Rebia, the three-judge Bench was also concerned about whether a petition under Articles 226 or Article 32 of the Constitution lies, inviting a decision on a disqualification petition by the high courts or the Supreme Court.

In Kihoto Hollohan, the finality as to the decision of the speaker under paragraph 6(1) of the Tenth Schedule was held to not exclude the jurisdiction of judicial review by courts. This paragraph states that the decision of the speaker on disqualification petitions shall be final but open to judicial review. However, judicial review should not cover any stage prior to the making of a decision by the speaker.

The only permissible interlocutory interference is when there has been a case of interim disqualifications, which means disqualification per se, which may have grave, immediate and irreversible repercussions and consequences.

Also read: Shiv Sena tussle before the Supreme Court and the Election Commission: Prelude to the Supreme Court’s framing of issues

So, as per this judgment, the petitions under Article 32 or 226 lie, but only when the speaker has decided on these petitions, and only when the decision of the speaker has led to infirmities based on violations of constitutional mandates, male fides, non-compliance with rules of natural justice and perversity.

• Can the court hold if a member is ‘deemed’ to be disqualified, by virtue of their actions, if the speaker has not decided upon it?

During the hearing of the petitions before CJI Ramana, and Justices Murari and Kohli, Salve had argued that there is no per se illegality principle in the Tenth Schedule. This means that it cannot be deemed that if a legislator has quit the party voluntarily, then they stand disqualified under Paragraph 2(1) of the Tenth Schedule, unless the speaker has decided upon it.

Paragraph 2(1)(a) and (b) of the Tenth Schedule state that a member of the House belonging to any political party shall be disqualified if they have voluntarily given up their membership of such political party and if they vote or abstain from voting in such House contrary to any direction issued by the political party without obtaining permission.

In Ravi S. Nair versus Union of India (1994), a three-judge bench of the Supreme Court had interpreted that ‘voluntary’ giving up of membership can be through resignation or through any other conduct which goes against the mandate of the original political party. Moreover, resignation can be inferred from the conduct of a member.

So, actions can be implied or expressed. However, the Shinde faction claims that they cannot be disqualified as the disqualification has not been decided by the speaker.

The Shinde faction can only be exempted from disqualification when it is proved that this was a merger under Paragraph 4 of the Tenth Schedule. For that, as per paragraph 4(2), the merger of a political party is said to have taken place when two-thirds of the legislature party (elected members to the House) agrees to such a merger.

Previously, Paragraph 3 of the Tenth Schedule protected a legislator from disqualification where such a member and any other member of the legislature party constituted a group which had arisen as a result of a split of the original political party, and such a group consisted of not less than one-third of members of the such legislature party. However, this paragraph was deleted by the Constitution (Ninety-first Amendment) Act, 2003.

The five-judge Constitution Bench will also have to determine what is the impact of the removal of Paragraph 3. According to the statement of objects and reasons of the 91st constitutional amendment, the paragraph was deleted as it “[came] under severe criticism on account of its destabilising effect on the government”. In fact, the Law Commission of India’s 170th Report on Reforms of the Electoral Laws, 1999, also recommended the deletion of Paragraph 4 of the Tenth Schedule as it unnecessarily leads to complications and disputes.

The report notes: “There can be mergers, splits and formation of new political parties but they shall not be reflected in the House. So far as the House is concerned, there shall not be splits in a political party and if any member violated Paragraph 2 of the Tenth Schedule, he will stand disqualified.”

Article 179(c) states that the speaker or deputy speaker may be removed from his office by a resolution of the assembly passed by a majority of “all the then members of the assembly”.

Further, the two-thirds members of the legislature party who break away from the one-third should merge with another political party to be protected from disqualification. They will either get the name of that party or can form a new party to get a new name. However, the Shinde faction claimed before the Election Commission of India (ECI) that they are the real Shiv Sena. On February 17, the ECI recognised the Shinde faction as the official Shiv Sena and allowed it to use the party symbol. 

But the essential question that lies here is whether the court can decide on the disqualification petitions when the speaker has not decided upon it. As per Kihoto Hollohan, the court cannot interfere.

In Keisham Meghachandra Singh versus The Hon’ble Speaker Manipur Legislative Assembly & Ors (2020), a three-judge Bench of the Supreme Court observed that the speaker must decide on disqualification petitions within a reasonable time.

It said: “What is reasonable will depend on the facts of each case, but absent exceptional circumstances for which there is good reason, a period of three months from the date on which the petition is filed is the outer limit within which disqualification petitions filed before the speaker must be decided if the constitutional objective of disqualifying persons who have infarcted the Tenth Schedule is to be adhered to.”

So, although the court has clarified what is a reasonable time for deciding a disqualification petition, the issue is complex as there are times when the petitions remain pending for more than six months, as happened in Maharashtra. In the meantime, a stake in the government is claimed.

Adding to the complexity, as per P.D.T. Achary, former Secretary General of Lok Sabha, the new speaker cannot decide which faction is the real Shiv Sena because they have to decide disqualification petitions based on the grounds on which the party had declared them as rebels.

This also shows that there is no one answer to the question of what is the status of the proceedings of the House when the disqualification is pending. This is one of the questions the five-judge Bench has decided below. Another similar question of what happens to the proceedings, if disqualification dates back to when the prohibitory conduct which led to disqualification was committed, was also raised and argued. It should be noted that the Supreme Court in Rajendra Singh Rana versus Swami Prasad Maurya (2007) has already clarified that the disqualification dates back to when the notices were issued. It is clear that this would alter the composition of the House and membership of the defected legislators will cease.

• What is the extent of discretion and power of the governor to invite a party to form the government, and whether the same is amenable to judicial review?

The governor, as per the constitutional scheme, has to take the aid and advice of the state government. That is why in Nabam Rebia, the action of the governor to move forward in time the session of the Arunachal legislative assembly was held unconstitutional. A seven-judge Constitution Bench of the Supreme Court in Shamsher Singh & Anr versus State of Punjab (1974) held that the governor must act on the aid and advice of the council of ministers. In the context of the question, the governor cannot technically act unless the speaker has decided on the disqualification.

In a situation where the government has lost the majority, the governor has to form an opinion on the same. According to Achary, the governor has many sources to form that opinion.

In Nabam Rebia, it was held that the governor’s actions beyond his authority would fall within the scope of judicial review.

The court in this context had observed: “The question is of the jurisdictional authority of the governor. The governor has no direct or indirect constitutionally assigned role, in the matter of removal of the speaker (or the deputy speaker).

“The governor is not the conscience keeper of the legislative assembly, in the matter of removal of the speaker. He does not participate in any executive or legislative responsibility, as a marshal. He has no such role assigned to him, whereby he can assume the position of advising and guiding the legislative assembly on the question of removal of the speaker (or deputy speaker).”

It had further held: “The governor can only perform such functions, in his own discretion, as are specifically assigned to him by or under this Constitution, within the framework of Article 163(1), and nothing more.

“In our final analysis, we are satisfied in concluding that the interjects at the hands of the governor, in the functioning of the state legislature, not expressly assigned to him, however bona fide, would be extraneous and without any constitutional sanction. A challenge to an action beyond the authority of the governor, would fall within the scope of the judicial review, and would be liable to be set aside.”

• What is the scope of the powers of the Election Commission of India to determine a split within a party?

Further, the court had also formulated a question on the scope of the powers of the ECI to determine a split within a party. As mentioned above, the concept of split is prohibited under the Tenth Schedule as it came under heavy criticism. As per the constitutional doctrine of colourability, something which is not allowed directly, cannot be allowed indirectly, even through a different authority.

Two-thirds members of the legislature party who break away from the one-third should merge with another political party to be protected from disqualification. 

In this context, it is important to note that the ECI has allowed the Shinde faction to retain the ‘Bow & Arrow’ symbol reserved under the Symbols (Reservation and Allotment) Order, 1968 and thereby officially recognised it as ‘Shiv Sena’, through the test of majority (numerical strength) laid down by the Supreme Court in Sadiq Ali versus Election Commission of India (1971).

The test of majority is based on legislative and organisational majority.

The ECI order states that the outcome of the majority test in the legislative wing clearly reflects the superiority of the majority test in favour of the Shinde faction. This has been done in accordance with Paragraph 15 of the Order which states: “When the commission is satisfied on information in its possession that there are rival sections or groups of a recognised political party each of whom claims to be that party, the commission may, after taking into account all the available facts and circumstances of the case and hearing such representatives of the sections or groups and other persons as desire to be heard, decide that one such rival section or group or none of such rival sections or groups is that recognised political party and the decision of the commission shall be binding on all such rival sections or groups.”

There were two other tests laid down in Sadiq Ali: ‘Aims and Objects’ and ‘Test of Party Constitution’. But the ECI found that only the test of majority is capable of yielding a numeral basis. It is clear that the decision is based on the purported legislative majority.

The proceedings before the ECI, which were instituted by the Shinde camp, were challenged by the Thackeray faction. However, the Supreme Court refused to put a stay on the proceedings. The ECI was faced with a unique issue here as Thackeray continued to be the president of the party. He will continue to hold that position till elections are held.

Interestingly, in 2018, the Shiv Sena party constitution was amended, giving powers to Thackeray to appoint an office-bearer to nominate the electoral college to elect himself. This the ECI found to be against the spirit of democracy. It asked to amend the 2018 constitution in line with the Representation of the People Act, 1951. That is why the ECI has said that the organisational majority has a non-conclusive outcome and any reliance on the test of the party constitution is undemocratic.

The Thackeray faction has been allowed the name ‘Shiv Sena (Uddhav Balasaheb Thackeray)’ and the symbol ‘Flaming Torch’, which was allotted to it per an interim order of ECI.

As per Thackeray’s petition, the ECI holding that disqualification under the Tenth Schedule operates in a different sphere from the proceedings under Paragraph 15 of the Order is ignorant of the fact that the membership of the legislator ceases under Paragraph 2(1) on the grounds of defection. It has also been argued that the ECI erred in recognising that there is a split in the political party. As per Shinde’s petition before the ECI, claims were only made in regard to a split in the legislative party.

It has also been alleged that the amendments made in 2018 to the party constitution were categorically communicated to the ECI. But since its validity was not in question before the ECI, no findings should have been rendered in this regard. Moreover, it has been alleged that the ECI has ignored that the Thackeray faction enjoys an overwhelming organisational majority.

Most importantly, it has been argued that the legislators relinquished their membership when the disqualification notices were sent to them. The disqualification will relate back to that date and thus, the reasoning on which the ECI order was based, does not remain as there would then be no legislative majority.

This argument holds water since Nabam Rebia is specifically challenged on the ground that the speaker under the cloud should not be allowed to decide on disqualification proceedings.

What did the five-judge Bench pronounce on the merits of the case?

After making a reference to the seven-judge bench and stating the interim measures, the Bench went to pronounce their reasoning on merits. It first decided on the issue of whether the courts can inquire into the proceedings of the legislature under Article 212 (courts not to inquire into the proceedings of the legislature) of the Constitution.

• Article 212 cannot be interpreted as placing ‘all procedural infringement’ beyond the place of judicial review

Article 212(1) stipulates that the Court shall not inquire into the validity of the proceedings of the legislature of a state on the ground of any alleged irregularity of procedure.

The Bench said that the House of the People and the legislative assemblies of the states are constituted of members directly elected by the electorate. The candidate who secures the highest number of votes is returned to the assembly. The political party, which reached the halfway mark, forms the government. A coalition of political parties may form a government if no single political party reaches the halfway mark. Articles 75 and 164 provide that the council of ministers is collectively responsible for the House of people in the legislative assemblies of the states respectively.

The legislators who are directly elected by the people have a duty to hold the executive accountable on the floor of the House. Legislative procedures serve two objectives: one, they enable deliberation and discussion on the floor of the House to hold the executive accountable. Such deliberations also produce better constitutional outcomes. Two, they create a system to place a check on the exercise of powers by the incumbent government. Certain procedural requirements are prescribed by the Constitution to safeguard constitutional values. This is reflected in Article 368, which prescribes a special majority to amend certain constitutional provisions. According to the members of the Constituent Assembly, this holds a higher constitutional end and democratic value. 

Certain other legislative procedures for the democratic processes and accountability prevent the concentration of powers in the incumbent government. Article 212 cannot be interpreted as placing “all procedural infringement beyond the place of judicial review”.

Such an interpretation would completely disregard the importance of legislative processes in a constitutional democracy.  

• On the appointment of whip: structure of the Tenth Schedule will crumble if whip is not appointed by the political party 

The petitioners contend that the whip and the leader must be appointed by the political party because Paragraph 2(1)(b) of the Tenth Schedule requires that the direction to vote in a particular manner in the House must be from the political party or a person authorised by it, meaning the party whip. The respondents submit that the distinction between a political party and a legislature party is artificial and that they are intertwined concepts.

A legislator loses their membership in the House under Article 191(2) of the Constitution, if he is disqualified under the Tenth Schedule.

The court said that to hold that it is the legislature party which appoints the whip would be too severe for the figurative umbilical cord which connects the member of the House to a political party. It would mean that legislators can rely on the political party for the purpose of setting them up for elections; their campaigns would be based on the strengths and weaknesses of the political party, and its promises and policies; they could appeal to the voters on the basis of their affiliation to the party— but later disconnect themselves entirely from that 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 envisaged by the Constitution, the court held. The Tenth Schedule guards against this outcome; by providing that a whip be appointed by the political party, which is crucial for the sustenance of the Tenth Schedule. 

The entire structure of the Tenth Schedule, which is built on the integrity of a political party, would crumble if the requirement that the whip is to be appointed by the political party is not complied with, the court further said. This would render the provisions of the Tenth Schedule ineffective and would have wider ramifications on the democratic fabric of the country, the court observed.

Thus, ‘political party’ and ‘legislature party’ cannot be conflated. The contention of the respondents that political party and legislature party is inextricably intertwined is erroneous, as per the judgment.

Further, the judgment says that the courts cannot be excluded from inquiring into the validity of the action of the speaker in recognising the whip under Article 212.

• On speaker’s duty to inquire the political whip: speaker must only recognise the whip appointed by the political party 

The court noted that Thackeray met the newly elected MLAs on November 25, 2018. The meeting was chaired by Thackeray in the capacity of the party president (Paksh Pramukh) of Shiv Sena. The meeting came up with a resolution which unanimously resolved that all decisions in the meeting will be taken by Thackeray.

The resolution also appointed Shinde as the group leader of Shiv Sena legislature party (SSLP) and Sunil Prabhu as the chief whip. 

Subsequently, on June 21, 2022, some members of the SSLP held a meeting under the chairmanship of the president of Shiv Sena. In the meeting, it was resolved to remove Shinde as the group leader of SSLP and instead appoint Ajay Choudhari. The resolution was signed by Thackeray in the capacity of the president of the party on the official letterhead of the office of SSLP. The deputy speaker (who was discharging his function as the speaker) approved the request to appoint Choudhari as the party leader.

Also read: Maharashtra political crisis explained

But the respondents contended that on the same day, the “real” SSLP met and reaffirmed Shinde as the party leader and cancelled the appointment of Prabhu as the whip. Instead, it appointed Gogawale as the whip.

Meanwhile, July 3, 2022, the election for the post of Speaker was held. Mr Rahul Narwekar, the candidate of BJP was elected as the speaker and he took cognisance of the resolution passed by the Shinde-led faction to appoint Gogawale as the whip.

The court noted that the speaker was aware of the emergence of two factions of the legislature party. On July 3, 2022, when he appointed the new whip and party leader, the resolutions of the respondents specifically mentioned that a split had occurred due to dissatisfaction among some MLAs of the Shiv Sena. 

The fact that there were two resolutions appointing two whips and two different leaders, no doubt, resulted in the speaker inferring that there were two factions of the Shiv Sena, the court observed.

The speaker on taking cognisance of the resolution passed by the faction of the SSLP led by Shinde, did not attempt to identify which of the two persons who were nominated, namely Sunil Prabhu or Bharatshet Gogawale, was authorised by the political party. 

In a contentious situation like this, the speaker should have conducted an independent inquiry based on the rules and regulations of the political party to identify the whip authorised by the Shiv Sena political party. 

The speaker must only recognise the whip appointed by the political party.

The decision of the speaker to recognise Gogawale as the chief whip of the Shiv Sena is illegal because the decision was based on the resolution of a faction of the Shiv Sena legislature party without determining if the same was the decision taken by the political party. 

The court relied on Kihoto Hollohan, SR Bommai versus UOI (1994), and Kuldip Nayar versus Union of India (2006), in which this court had recognised that political parties are central to the Indian democratic set-up and that the Tenth Schedule seeks to curb defections from political parties. When the anti-defection law seeks to curb defections from a political party, it is only a logical corollary to recognise that the power to appoint whip vests with the political party, the court concluded.

• On harmonising the Tenth Schedule and the Symbols Order 

The court did not accept the solution proposed by the petitioners that the ECI is barred from adjudicating petitions under Paragraph 15 of the Symbols Order until the final adjudication of the disqualification petition under Tenth Schedule is done. 

This would, in effect, indefinitely stay the proceedings before the ECI. The order of the speaker attains finality after all avenues for the appeal of the speaker have been exhausted or are barred by the passage of time, the court said.

It further averred that the ECI is a constitutionally entrenched institution, which is invested with the function of superintendent control of the electoral process. 

The ECI cannot be prevented from performing its constitutional duty for an indefinite period of time. Proceedings before one constitutional authority cannot be halted in anticipation of the decision of another constitutional authority. 

• On ECI arriving at its decision on the test of majority 

The court said that the ECI does not have to necessarily rely on the test of the majority alone. In cases such as the present one, it would be futile to assess which group enjoys the majority in the legislature. 

The ECI must look to other tests such as the evaluation of the majority in the organisational wings of the political party, analysis of the provisions of the party’s constitution, or any other appropriate tests. 

The court also referred the judgment of Sadiq Ali and held that the qualification proceedings before the speaker cannot be stayed in anticipation of the decision of the ECI. 

In cases where the petition under Paragraph 15 of the Symbols Order is filed after the alleged commission of the prohibitory conduct, the decision of the ECI cannot be relied on by the speaker adjudicating disqualification proceedings under the Tenth Schedule. 

If such a decision is to be relied upon, it will have a retrospective effect, which would make it contrary to law. 

• Impact of deletion of Paragraph 3 of the Tenth Schedule 

This question emerged from both sides of the parties claiming to be the ‘real’ Shiv Sena, which points to the existence of a split within the SSLP.  

The court observed that no faction can argue that they constitute the original political party, as it defends against disqualification on the ground of defection.  

On the deletion of Paragraph 3 of the Tenth Schedule, the court stated that the inevitable consequence is that the defence of a split is no longer available to members who face disqualification proceedings. 

In case where a split has occurred in a political or legislative party, neither members of the factions can validly raise the defence that they are the political party. 

In the event that each faction files a petition for the disqualification of the members of the other faction, the defence sought to be availed must be found under the Tenth Schedule. 

The Speaker must only recognise the whip appointed by the political party.

Further, the deletion of Paragraph 3 impacts the proceedings under Paragraph 2(1)(b). When there are two or more whips appointed by two or more factions of the political party, the speaker decides which of the two whips represents the political party, the court observed.

The decision of the speaker under Paragraph 2(1)(b) of Tenth Schedule on disqualification depends on the decision of the speaker recognising of two or more whips.  

• On no-confidence motion and the power of the speaker to adjourn the sitting of the House

To avert a no-confidence motion, the incumbent government may not advise the governor to convene a session of the assembly, the court averred.

The speaker may adjourn the sitting of the House to prevent voting for granting leave to move a motion of no-confidence motion, it continued.

If the speaker and the government attempts to circumvent a no-confidence motion, the governor would be justified in exercising his powers under Article 174 without the aid and advice of the council of ministers, the court clarified. 

• Role of the governor in the present case

The petitioners had argued that the governor was not justified in calling for a floor test on the basis of the resolution dated June 21, 2022, because 34 MLAs belonging to Shiv Sena did not express their intention to exit the Maha Vikas Aghadi coalition, and those MLAs, who signed the resolution, constituted a faction of the SSLP. 

The court observed that although the resolution expressed that the concerned MLAs are dissatisfied with the functioning of the government, they did not record their intention to withdraw support from the government. Amongst the MLAs who signed the resolution dated June, 282022, a few were ministers in the government. 

On the basis of this resolution, the governor concluded that a majority of Shiv Sena MLA had given a clear indication that they intended to exist from the Maha Vikas Aghadi coalition. 

The court noted that the assembly was not in session when Fadnavis and the seven independent MLAs wrote the letter calling for a floor test to the governor. However, no attempt was made by the opposite party to issue a no-confidence motion.

The governor had no objective material on the basis of which he could doubt the confidence of the incumbent government, the court averred.

Also read: Shiv Sena versus Shiv Sena: Outgoing CJI may frame the issues to be decided by a larger Bench

The resolution on which the governor relied did not contain any indication that the MLAs wish to exist 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 must 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 court used the term ‘opinion’ of the governor to mean satisfaction based on objective criteria as to whether he possessed relevant material. It does not mean the subjective satisfaction of the governor. 

Once the government is democratically elected in accordance with the law, there is a presumption that it enjoys the confidence of the House.

Even if the MLAs implied that they intended to exit from the government, they only consisted a faction of the SSLP. This at the most indicated their dissatisfaction with the course adopted by the political party.

• On internal party disputes and role of the governor 

The legal tussle in Maharashtra arose as a result of internal party difference. However, floor test cannot be used as a medium to resolve internal or intra-party disputes. Dissent and disagreement within a political party must be resolved in accordance with the remedies prescribed under the party constitution. 

The Constitution and existing laws do not provide a mechanism by which disputes amongst members of political parties can be settled. Certainly these laws do not empower the governor to enter the political arena and play a role, however minute, in the inter- or intra-party disputes. 

Thus, the governor cannot act upon an inference that a section of Shiv Sena wish to withdraw their support from the MVA on the floor of the House.  

The court also went on to state that the letter dated June 25, 2022, sent by 38 MLAs to the governor requesting for restoration of their security indicated that they no longer wanted to be a part of the MVA. However, this cannot mean they have withdrawn their support to the government. This was an extraneous reason considered by the governor.

Another communication relied on by the governor was the letter dated June 21, 2022 by Shinde that the appointment of new party leader Ajay Choudhary was illegal. The governor may not inquire into or express opinion on the validity of the proceedings as the same is exclusively within the domain of the legislature. 

Lastly, the communication of the letter by Fadnavis and other MLAs to the governor asking for directions to Thackeray to prove his majority was not a proper channel. These MLAs could have moved the motion of no-confidence. Moreover, a request by some MLAs to direct a chief minister to prove his majority does not amount to a relevant or germane reason to call for a floor test.

No communication relied by the governor indicated that the dissatisfied MLAs from Shiv Sena intended to withdraw their support. It only intended that a faction disagreed with the policy decision of the party. 

Moreover, the governor lacked any objective material that is indicative of the fact that an incumbent government has lost the confidence of the House. 

Thus, the exercise of the discretion of the governor was not in accordance with law. 

• On restoring status quo ante

The court did not restore the status quo ante as it said that Thackeray resigned and did not face the floor test on June 30, 2022. 

Had the chief minister not resigned, the court could have considered granting the remedy of reinstating the government headed by Thackeray.

• Members of the House lose the right of participation until they are disqualified 

Apart from these main issues, the court also deliberated on the validity of the proceedings of the House between the prohibitory conduct of the MLA and the decision of the speaker on disqualification petition. 

It held that the members of the House lose their right to participate in the proceedings of the House only upon their disqualification. The decision of the speaker does not relate back to the date when an MLA indulged in prohibitory conduct. The decision of the speaker and the consequences of disqualification are prospective.