Supreme Court clarifies powers of Governor and Speaker in Maharashtra Political Crisis: Subhash Desai vs. Principal Secretary, Governor of Maharashtra & Ors. (2023) INSC 441 (11 May 2023)

Case Background

The case stems from a political crisis in Maharashtra, where a coalition government of Shiv Sena, Nationalist Congress Party (NCP), and Indian National Congress (INC), known as Maha Vikas Aghadi (MVA), was in power with Mr. Uddhav Thackeray as the Chief Minister. In mid-2022, a faction within the Shiv Sena, led by Mr. Eknath Shinde, rebelled, leading to a change in government. The Shinde faction, claiming to be the “real” Shiv Sena, formed a new government with the Bharatiya Janata Party (BJP) and some independent MLAs, with Mr. Shinde as the Chief Minister. This change was marked by disputes over party leadership, whips, and disqualification proceedings.

Timeline:

Course of Proceedings

The political crisis led to several legal challenges. Disqualification petitions were filed against MLAs from both factions. The Governor’s decision to call for a floor test was also challenged. The Supreme Court initially extended the time for MLAs to respond to disqualification petitions. Then, the Court declined to stay the floor test, leading to Mr. Thackeray’s resignation. The matter was then referred to a five-judge bench of the Supreme Court due to substantial questions of law.

Legal Framework

The judgment primarily revolves around the interpretation of the following:

• Article 179(c) of the Constitution of India: This article deals with the removal of the Speaker or Deputy Speaker by a resolution passed by a majority of all the then members of the Assembly.
• Article 191(2) of the Constitution of India: This article states that a person shall be disqualified for being a member of the Legislative Assembly if they are so disqualified under the Tenth Schedule.
• Article 164(1B) of the Constitution of India: This article states that a member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister.
• Tenth Schedule of the Constitution of India: This schedule outlines the provisions for disqualification of members of Parliament and State Legislatures on grounds of defection.
• The Election Symbols (Reservation and Allotment) Order 1968: This order governs the reservation and allotment of symbols to candidates for the purpose of elections.
• Maharashtra Legislative Assembly (Disqualification on Ground of Defection) Rules 1986: These rules lay down the procedure for filing disqualification petitions against a member of the House before the Speaker.
• Maharashtra Legislature Members (Removal of Disqualification) Act 1956: This act defines the offices which do not disqualify a member from being an MLA.

The court emphasized the importance of the Tenth Schedule in curbing political defections and upholding the principles of parliamentary democracy. The court also highlighted the role of the Governor in ensuring that the government enjoys the confidence of the House, while also maintaining the independence of the Speaker as a tribunal under the Tenth Schedule.

Arguments

The petitioners, primarily from the Thackeray faction, argued that:

• The Supreme Court should decide the disqualification petitions due to the Speaker’s bias.
• The Shinde faction MLAs are per se disqualified for defying party whips.
• The Governor’s decision to call for a floor test was illegal and based on extraneous considerations.
• The Speaker’s recognition of Mr. Gogawale as Chief Whip was illegal.
• The ECI’s decision on the party symbol should not affect disqualification proceedings.

The respondents, primarily from the 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.
• The majority of the legislature party can appoint the Leader and Chief Whip.
• The Governor’s decision to call for a floor test and invite Mr. Shinde to form the government was valid.
• The ECI is the sole authority to decide on a split in a political party.

Sub-Submissions

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 Tenth Schedule of the Constitution, as held by this Court in Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly;
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; and
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:

Judgment

The Supreme Court also made the following observations regarding the authorities:

• The decision in Nabam Rebia was referred to a larger bench for reconsideration.
• The principles laid down in Kihoto Hollohan regarding the role and impartiality of the Speaker were reaffirmed.
• The principle in Rajendra Singh Rana that disqualification relates back to the date of the action was upheld.
• The distinction between a ‘political party’ and a ‘legislature party’ as highlighted in Mayawati was emphasized.
• The interpretation of Article 212 as not excluding judicial review on grounds of substantive illegality, as discussed in Raja Ram Pal, was reiterated.

What weighed in the mind of the Court?

The Supreme Court’s reasoning was primarily driven by the following considerations:

• Upholding Constitutional Principles: The Court emphasized the importance of upholding the principles of parliamentary democracy, the separation of powers, and the rule of law.
• Curbing Defections: The Court highlighted the need to curb political defections and maintain the integrity of the electoral process.
• Maintaining Institutional Balance: The Court sought to maintain a balance between the powers of the Governor, the Speaker, and the ECI, ensuring that each institution operates within its constitutional limits.
• Ensuring Fair Process: The Court stressed the importance of following due process and principles of natural justice in disqualification proceedings.
• Interpreting Legal Provisions Literally and Purposively: The Court interpreted the legal provisions literally and purposively to ensure that the intent of the Constitution and the laws is upheld.

Sentiment Analysis Ranking

Fact:Law Ratio

The Court’s reasoning was more inclined towards legal considerations (60%) than factual aspects (40%) of the case.

Logical Reasoning

Impact of the Judgment

The judgment has significant implications for Indian politics and constitutional law:

• Clarification of Governor’s Powers: The judgment clarifies that the Governor’s power to call for a floor test is not unfettered and must be based on objective material. This limits the Governor’s ability to interfere in internal party disputes.
• Role of the Speaker: The judgment reaffirms the Speaker’s role as the primary authority to decide on disqualification petitions. However, it also acknowledges the possibility of judicial review in exceptional circumstances.
• Definition of Political Party: The judgment clarifies that the political party, not the legislature party, has the authority to appoint the Whip and leader. This strengthens the control of the political party over its members.
• Curbing Defections: By clarifying that the defense of a split is no longer available, the judgment strengthens the anti-defection law and discourages political defections.
• Judicial Review: The judgment reiterates that judicial review of legislative proceedings is permissible on grounds of substantive illegality.
• ECI’s Role: The judgment clarifies that the ECI’s decision on party symbols has prospective effect and does not affect disqualification proceedings.

Impact Ranking

Conclusion

The Supreme Court’s judgment in Subhash Desai vs. Principal Secretary, Governor of Maharashtra & Ors. is a significant milestone in Indian constitutional law. It provides much-needed clarity on the powers of the Governor, the Speaker, and the ECI in matters of disqualification and party splits. The judgment emphasizes the importance of upholding constitutional principles, curbing political defections, and maintaining institutional balance. It also reaffirms the importance of due process and natural justice in disqualification proceedings. While the Court did not restore the previous government, its decision has far-reaching implications for the future of Indian politics and the interpretation of the Tenth Schedule of the Constitution.