Governor’s Discretion and Anti-Defection Law: Supreme Court’s Verdict on Maharashtra Political Crisis (2023) INSC 516

Introduction

Date of the Judgment: 11 May 2023

Citation: 2023 INSC 516

Judges: Dr. Dhananjaya Y Chandrachud, CJI, M.R. Shah, Krishna Murari, Hima Kohli, and Pamidighantam Sri Narasimha, JJ. (Unanimous Bench)

Can a Governor direct a floor test based on internal party disputes? The Supreme Court of India recently addressed this question, among others, in a significant judgment arising from the political turmoil in Maharashtra. The core issue revolved around the Governor’s discretionary powers, the interpretation of the Tenth Schedule (anti-defection law), and the role of the Election Commission of India (ECI) in resolving disputes within political parties. This case arose from a series of events that led to a change in government in Maharashtra, triggered by a split in the Shiv Sena party.

Case Background

The 14th Maharashtra Legislative Assembly elections in October 2019 resulted in a fractured mandate. The Bharatiya Janata Party (BJP) won 106 seats, Shiv Sena 56, Nationalist Congress Party (NCP) 53, and the Indian National Congress (INC) 44. Initially, the Shiv Sena, NCP, and INC formed a post-poll alliance known as the Maha Vikas Aghadi (MVA), with Mr. Uddhav Thackeray of Shiv Sena becoming the Chief Minister.

In June 2022, a faction within the Shiv Sena, led by Mr. Eknath Shinde, emerged, claiming to be the “real” Shiv Sena. This faction’s actions led to a series of events, including resolutions passed by both factions regarding the leadership of the Shiv Sena Legislature Party (SSLP) and the appointment of the Chief Whip. The conflict escalated with the issuance of whips, disqualification petitions, and the Governor’s intervention.

Timeline

Course of Proceedings

The case reached the Supreme Court through multiple writ petitions filed by both factions of the Shiv Sena. A three-judge bench initially heard the matter and, on August 23, 2022, referred it to a five-judge Constitution Bench due to the presence of substantial questions of law. The primary issue was whether a notice for the removal of the Speaker restricts their power to proceed with disqualification proceedings, as held in the case of Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1.

Legal Framework

The judgment primarily revolves around the interpretation of the following:

• Tenth Schedule of the Constitution: This schedule deals with the disqualification of members of Parliament and State Legislatures on the grounds of defection. It specifies the conditions under which a legislator can be disqualified for switching parties or disobeying party directives.
• Article 179(c) of the Constitution: This article outlines the procedure for the removal of the Speaker or Deputy Speaker of a State Legislative Assembly.
• Article 163 of the Constitution: This article deals with the discretionary powers of the Governor in exercising their functions.
• Article 164(1B) of the Constitution: This article specifies the disqualification for appointment as a Minister for a member who is disqualified under Paragraph 2 of the Tenth Schedule of the Constitution.
• Article 212 of the Constitution: This article restricts the courts from inquiring into the validity of the proceedings of the State Legislature on the ground of any alleged irregularity of procedure.
• Election Symbols (Reservation and Allotment) Order, 1968: This order governs the allotment of symbols to political parties and candidates in elections. Paragraph 15 of the order deals with disputes between rival factions of a political party.
• Maharashtra Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986: These rules detail the procedure for disqualification of members of the Maharashtra Legislative Assembly.
• Maharashtra Legislature Members (Removal of Disqualification) Act 1956: This Act defines the term ‘Whip’ in relation to the Maharashtra Legislative Assembly.

Arguments

The petitioners, representing the Uddhav Thackeray faction, argued that:

• The Supreme Court should decide the disqualification petitions due to the bias of the current Speaker.
• A per se case of disqualification is made out against the Shinde faction under Paragraph 2(1)(a) and 2(1)(b) of the Tenth Schedule.
• The Governor’s decision to call for a floor test and invite Mr. Shinde to form the government was illegal.
• The Chief Whip and the Leader of the legislature party must be appointed by the political party and not the legislature party.
• The decision of the ECI under Paragraph 15 of the Symbols Order will have prospective effect and cannot be applied retrospectively to the pending disqualification petitions.
• The status quo ante as on 27 June 2022 ought to be restored.

The respondents, representing the Eknath Shinde faction, argued that:

• The Speaker is the sole authority to decide on disqualification petitions.
• The concept of per se disqualification is unknown to the Constitution and must be decided after following due process.
• MLAs facing disqualification retain the right to participate in the proceedings of the House.
• The ECI has exclusive jurisdiction to decide a split in a political party under Paragraph 15 of the Symbols Order.
• A majority of a legislature party may appoint the Leader and the Chief Whip of the legislature party.
• The Governor’s decision to call Mr. Eknath Shinde to form the Government is valid.

The Governor, represented by the Solicitor General, argued that:

• The decision to call for a floor test was justified based on the prevailing circumstances.
• The Governor’s decision to administer the oath of office to Mr. Shinde was based on objective facts.

The innovativeness of the argument by the petitioners revolved around the interpretation of the Tenth Schedule to prioritize the role of the political party over the legislature party in appointing the Whip and the Leader. They also argued for the retrospective application of disqualification, linking it to the date of the prohibited conduct. The respondents, on the other hand, emphasized the constitutional authority of the Speaker and the autonomy of the legislature party, advocating for a more procedural approach to disqualification matters.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. Whether a notice for removal of a Speaker restricts them from continuing with disqualification proceedings under the Tenth Schedule of the Constitution, as held by this Court in 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 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 with respect to the determination of a split within a party?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Key Findings

The Supreme Court’s judgment can be summarized as follows:

• Speaker’s Authority: The Speaker is the primary authority to decide on disqualification petitions under the Tenth Schedule. The Court cannot ordinarily adjudicate petitions for disqualification in the first instance.
• No Deemed Disqualification: A member is not deemed disqualified until the Speaker’s decision. The disqualification is prospective.
• Proceedings of the House: MLAs retain the right to participate in House proceedings, and the validity of proceedings is not subject to the outcome of disqualification petitions.
• Whip and Leader: The political party, not the legislature party, appoints the Whip and the Leader. The Speaker must recognize the Whip and the Leader authorized by the political party.
• Governor’s Discretion: The Governor’s discretion is subject to judicial review and must be based on objective material. The Governor was not justified in calling for a floor test.
• ECI’s Powers: The ECI has the power to determine a split within a party. The ECI and the Speaker are empowered to concurrently adjudicate on the petitions before them. The decision of the ECI is prospective.

Ratio Decidendi and Obiter Dicta

Ratio Decidendi:

• The core legal principle established by the Court is that the authority to appoint the Whip and the Leader of the Legislature Party rests with the political party, not the legislature party. This is crucial in determining the validity of actions taken by legislators under the Tenth Schedule.
• The Court also held that the Governor’s discretionary powers are subject to judicial review and must be exercised based on objective material, thereby limiting the Governor’s ability to interfere in internal party disputes.
• The Court also held that the decision of the Speaker on disqualification petitions is prospective.

Obiter Dicta:

• The Court’s observations on the limited scope of judicial review in matters of disqualification proceedings and the need for the Speaker to act impartially can be considered as obiter dicta.
• The Court’s comments on the need for the Speaker to decide disqualification petitions within a reasonable time frame and to follow the principles of natural justice can also be considered obiter dicta.
• The Court’s observation that the ECI and the Speaker are empowered to concurrently adjudicate on the petitions before them can also be considered obiter dicta.

Flowchart of Disqualification Process

Ratio Table

Conclusion

The Supreme Court’s judgment in the Maharashtra political crisis case has significant implications for Indian politics and constitutional law. The Court has clarified the scope of the Governor’s discretionary powers, emphasizing that such powers are not absolute and are subject to judicial review. The Court has also reinforced the importance of the political party in matters of defection, stating that the political party, not the legislature party, is the authority to appoint the Whip and the Leader. The Court has also clarified that the decision of the Speaker on disqualification petitions is prospective.

The judgment also highlights the need for Speakers to act impartially and to decide on disqualification petitions within a reasonable time frame. The Court’s decision has reaffirmed the supremacy of the Constitution and the importance of upholding democratic principles. The judgment is a landmark ruling that will have far-reaching consequences for the interpretation of the Tenth Schedule of the Constitution and the functioning of parliamentary democracy in India.

The case has also created a split in the opinion on the extent of the powers of the Speaker and the Governor and has highlighted the need for a more nuanced understanding of the Tenth Schedule. The ruling has also created a debate on the relationship between the political party and the legislature party.