In Writ Petition (Civil) 493 of 2022- SC - Maharashtra political crisis: Constitution Bench rules that Uddhav Thackeray’s position as Chief Minister cannot be restored even though there were discrepancies in the Governor’s decision to allow the Eknath Shinde-led faction of Shiv Sena to form government; refers its 2016 ‘Nabam Rebia’ verdict to 7-judge bench
Chief Justice Dhananjaya Y. Chandrachud, Justice M.R. Shah, Justice Krishna Murari, Justice Hima Kohli and Justice Pamidighantam Sri Narasimha [11-05-2023]

Read Order: Subhash Desai v Principal Secretary, Governor of Maharashtra

Simran Singh

New Delhi, May 11, 2023: A Constitution bench of the Supreme Court, delivering its verdict today pertaining to the political crisis in Maharashtra which had led to a change in the State government in 2022, has held that the Governor erred in relying upon the resolution signed by the Eknath Shinde-led faction of the Shiv Sena to conclude that the then Chief Minister Uddhav Thackeray had lost the support of the majority of the House, and that the exercise of discretion by the Governor in this case was not in accordance with law. The Bench, however, held that the Court cannot order the restoration of the Uddhav Thackeray-led government as he had resigned without facing the floor test.

The Bench comprising of Chief Justice Dhananjaya Y. Chandrachud, Justice M.R. Shah, Justice Krishna Murari, Justice Hima Kohli and Justice Pamidighantam Sri Narasimha had started to hear the matter on 14-02-2023 and the judgment was accordingly reserved on 16-03-2023.

“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 the Governor was justified in inviting Mr. Shinde to form the government,” said the Constitution  Bench said.

The Bench, in its 141-page verdict, has also referred to a 7-judge bench its 2016 judgement in Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly whereby it was held that when a notice under Article 179(c) for the removal of the Speaker of a House is pending, the Speaker cannot decide a disqualification petition filed under the anti-defection law. Both factions in the matter had referred to the Nabam Rebia case.

Factual Matrix

The change in composition of the government in Maharashtra from Uddhav Thackeray-led government (petitioners) to Eknath Shinde-led government (respondent) was precipitated by the emergence of two factions within the Shiv Sena party. Each faction claimed to represent the ‘real’ political party and passed various resolutions pertaining to the affairs of the Shiv Sena Legislative Party (SSLP).

The batch of petitions were filed over multiple contentions extended by both the parties. The Eknath Shinde-led government had challenged the notices issued by the then Deputy Speaker against the ‘rebels’ under the 10th Schedule over the alleged act of defection and the Thackeray led faction filed petitions over the decision of the Governor to call for a trust vote, swearing-in of Eknath Shinde as the Chief Minister, propose of election of new speaker etc.

In June 2022, Uddhav Thackeray was the Chief Minister, Eknath Shinde was the leader of the SSLP, Sunil Prabhu was the Chief Whip of Shiv Sena.

However, by 03-07-2022, Uddhav Thackeray had resigned from the position of Chief Minister, Eknath Shinde took over his position as the Chief Minister, Ajay Choudhari was recognised as the Leader of the SSLP and Bharat Gogawale was recognised as the Chief Whip.

Each faction continued to claim that the appointments made by them and communicated to the Speaker or the Deputy Speaker, were legal and valid, and that the appointments made by the opposite faction were illegal and invalid. Time and again, the question of who the ‘real’ Shiv Sena was, arose.

The Election Commission (‘ECI’) in its order vide dated 17-02-2023 had held the the party name ‘Shiv Sena’ and the party symbol ‘Bow and Arrow’ was to be retained by the Eknath Shinde faction.

Issues for consideration:

1. Whether a notice for removal of a Speaker restricts them from continuing with disqualification proceedings under 10th Schedule of the Constitution, as held by this Court in Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (‘Nabam Rebia')?
2. Whether a petition under Article 226 or Article 32 lies, inviting a decision on a disqualification petition by the 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 his/her 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 10th 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 10th Schedule?
7. What is the scope of the power of the Speaker to determine the Whip and the leader of the house legislature party?
8. What is the interplay of the same with respect to the provisions of the 10th Schedule?
1. Are intra-party decisions amenable to judicial review? What is the scope of the same? 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 with respect to the determination of a split within a party?

Reference of Nabam Rebia case to a larger bench

During the course of the hearing, a preliminary submission was made before the Bench to the effect that the decision of Nabam Rebia required reconsideration by a 7-judge bench. The bench had deferred the decision vide order dated 17-02-2023 and had held that the issue whether the aforementioned reference should be made or not could not be considered in the abstract, isolated and divorced from the facts of the case, thus, the issue was warranted to be determined together with the merits of the case

The Court was of the view that the ruling in Nabam Rebia did not apply to the factual scenario of the present case. However, it doubted the validity of the law laid down in the case that a speaker would be disabled from initiating disqualification proceedings when a notice seeking their removal was pending.  Since Nabam Rebia was earlier delivered by a Bench constituting an equal strength of 5-judges, it was stated that the decision merited reference to a larger bench because a substantial question of law remained to be settled, ie. “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.”

The Bench laid down interim measures that was to be adopted pending the decision of the larger bench.

1. Speaker was entitled to rule upon and decide application questioning their jurisdiction.
2. The Speaker was entitled to rule on applications which require them to refrain from adjudicating proceedings under the 10th Schedule on the ground of initiation of a motion for their removal under Article 179(c). A Speaker can examine if the application is bonafide or intended only to evade adjudication;
3. If the Speaker believed that the motion was well founded, they may adjourn the proceedings under the 10th Schedule till the decision for their removal was concluded. On the other hand, if they believed that the motion was not as per the procedure contemplated under the Constitution, read with the relevant rules, they were entitled to reject the plea and proceed with the hearing.
4. The decision of the Speaker, either to adjourn the proceedings under the 10th Schedule in view of the pending proceedings under Article 179(c) or to proceed with the hearing would be subject ed to judicial review. As the decision of the Speaker related to their jurisdiction, the bar of a qua time action, as contemplated in Kihoto Hollohan  v Zachillhu will not apply.

The Court further stated that they could not ordinarily adjudicate petitions for disqualification under the 10th Schedule in the first instance. There were no extra ordinary circumstances in the present case that warranted the exercise of jurisdiction by this Court to adjudicate disqualification petitions. The Speaker must decide disqualification petitioner within a reasonable period.

The Bench was of the view that a Member of Legislative Assemble had 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 was not ‘subject to’ the outcome of the disqualification petitions.

The Court stated that it was the political party and not the legislature party which appointed 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 was 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 03-07-2022 was contrary to law. The speaker shall recognise the Whip and the Leader who were duly authorised by the Shiv Sena political party with reference to the provisions of the party constitution.

The Bench stated that the Speaker and the ECI were empowered to concurrently adjudicate on the petitions before them under the 10th schedule and under Paragraph 15 of the Symbols Order. 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.

The Court was of the view that the effect of the deletion of Paragraph 3 of the 10th schedule was that the defence of ‘split’ was no longer available to members facing disqualification proceedings. The Speaker would prima facie determine who the political party was for the purpose of adjudicating disqualification petitions under Paragraph 2(1) of the Tenth Schedule, where two or more factions claimed to be that political party.

The Bench further stated that the Governor was not justified in calling upon Uddhav 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 Uddhav Thackeray had lost the confidence of the House. However, the status quo ante could not be restored because he did not face the floor test and tendered his resignation. The Court thus, opined that the Governor was justified in inviting Eknath Shinde to form the Government and accordingly disposed of the petitions.