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Subhash Desai v. Principal Secretary, Governor of Maharashtra

Supreme Court of India · 11 May 2023 · 5 judges

The Constitution Bench held that the political party, not the legislature party, appoints the Whip, that the Governor wrongly called a floor test without objective material, and referred the correctness of Nabam Rebia to seven judges.

Facts

The Maha Vikas Aghadi government in Maharashtra, led by Uddhav Thackeray of the Shiv Sena, faced a revolt in June 2022 when a group of Shiv Sena MLAs led by Eknath Shinde split from the Thackeray faction. Each faction passed resolutions on the Group Leader and Chief Whip of the Shiv Sena Legislature Party. Disqualification petitions were filed against the Shinde group, while a notice to remove the Deputy Speaker was issued. On 28 June 2022 the Governor called on Thackeray to face a floor test. This Court declined to stay it, and Thackeray resigned. The Governor invited Shinde to form the government. The new Speaker recognised the Shinde faction's Whip and Leader. Writ petitions under Article 32 challenged these steps and were referred to a five-Judge Bench.

Questions before the Court

  1. Does a notice for removal of the Speaker restrain him from deciding disqualification petitions, as held in Nabam Rebia, and can this Court decide disqualification petitions in the first instance?
  2. Who appoints the Whip and the Leader of the legislature party, and is the Speaker's recognition of them open to judicial review?
  3. What is the effect of the deletion of Paragraph 3 of the Tenth Schedule, and how do the Speaker's and the Election Commission's powers interact?
  4. Was the Governor justified in calling for a floor test and in inviting Mr. Shinde to form the government?

What the Court held

  • The correctness of Nabam Rebia, on whether a notice of intention to move a resolution for the Speaker's removal restrains him from deciding disqualification petitions, is referred to seven judges. On the facts Nabam Rebia did not apply.
  • This Court cannot ordinarily decide disqualification petitions under the Tenth Schedule at the first instance, and there were no extraordinary circumstances. The Speaker must decide them within a reasonable period. An MLA may take part in House proceedings while disqualification petitions are pending, and those proceedings are not subject to their outcome.
  • The political party, not the legislature party, appoints the Whip and the Leader and issues directions on voting. The Speaker's recognition of the Whip and Leader chosen by a faction of the legislature party was contrary to law; he must recognise those authorised by the Shiv Sena political party after an enquiry under the party constitution.
  • After the deletion of Paragraph 3, the defence of a split is no longer available. The Speaker decides prima facie which faction is the political party for disqualification, looking at the party constitution and not merely numbers in the House. The Speaker and the Election Commission may decide their proceedings concurrently.
  • The Governor was not justified in calling the floor test, as he had no objective material that Mr. Thackeray had lost the confidence of the House. The status quo ante could not be restored because Mr. Thackeray resigned without facing the floor test. The Governor was justified in inviting Mr. Shinde to form the government.

Why it matters

The judgment holds that the Whip under the Tenth Schedule must be the choice of the political party, which ties legislators to the party that set them up. It requires objective material before a Governor calls a floor test, explains the effect of deleting the split defence from the Tenth Schedule, and refers the rule in Nabam Rebia to a larger Bench.

In the Court's words

Copied from the official judgment; each passage links to its page.

“Second, a request by some MLAs for a direction to the Chief Minister to prove his majority does not, taken alone, amount to a relevant and germane reason to call for a floor test. There must be some objective material in addition to a mere request to call for a floor test. 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, the exercise of discretion by the Governor in this case was not in accordance with law.”
Dr Dhananjaya Y Chandrachud, CJIPage 132 of the judgment
“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.”
Page 139 of the judgment
“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.”
Dr Dhananjaya Y Chandrachud, CJIPage 92 of the judgment
“The inevitable consequence of the deletion of Paragraph 3 from the Tenth Schedule is that the defence of a split is no longer available to members who face disqualification proceedings. In cases where a split has occurred in a political party or in a legislature party, members of neither faction may validly raise the defence that they are the political party in the event that each faction files petitions for the disqualification of members of the other faction.”
Dr Dhananjaya Y Chandrachud, CJIPage 118 of the judgment

Provisions interpreted

Related judgments

Case and bench

Parties
Subhash Desai v. Principal Secretary, Governor of Maharashtra
Case
Writ Petition (C) No. 493 of 2022
Decided
11 May 2023
Bench
Dr Dhananjaya Y Chandrachud, CJI, MR Shah, Krishna Murari, Hima Kohli, Pamidighantam Sri Narasimha
Opinions
Unanimous judgment of a five-Judge Constitution Bench delivered by Dr Dhananjaya Y Chandrachud, CJI.

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