NDLI: Subhash Desai Vs. Principal Secretary, Governor of Maharashtra & Ors.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Split in Political Party Art.191(2) Constitution of India Coalition Government Maharashtra Legislative Assembly Rules Losing Confidence of the House r.95
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Constitution of India
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 Referred Case 5 Referred Case 6 Referred Case 7 Referred Case 8 Referred Case 9 Referred Case 10 Referred Case 11 Referred Case 12 Referred Case 13 Referred Case 14 Referred Case 15 Referred Case 16 Referred Case 17 Referred Case 18
Case Type	Writ Petition
Court	Supreme Court of India
Disposal Nature	Others
Headnote	Constitution of India: Art.191(2) – Maharashtra LegislativeAssembly Rules – r.95 – Coalition Government – Split in PoliticalParty – Losing Confidence of the House – Power of the Governorto call for Floor Test – After the State elections in 2019, a coalitiongovernment of Maha Vikas Agadi (MVA) [a post-poll alliance ofShiv Sena, Nationalist Congress Party (NCP), Indian NationalCongress (INC) and some independent MLAs] was formed inMaharashtra, with Mr. Thackeray of Shiv Sena as the Chief Minister– However, certain events transpired in mid-2022 which led to splitin Shiv Sena into two factions, one led by Mr. Thackeray and theother led by Mr. Shinde – 34 Shiv Sena MLAs (of Shinde Group)issued notice to Deputy Speaker stating that he no longer enjoyedtheir support and calling upon him to move a motion for his ownremoval – In the meanwhile, notices were issued by the DeputySpeaker on petition filed by the Chief Whip of petitioners (ThackerayGroup) under Tenth Schedule to the Constitution for disqualificationof MLAs of Shinde Group – Governor, pursuant to letter addressedby the Opposition Party, called upon the Thackeray Group to provemajority on the floor of the House – Thackeray resigned on thevery next day and thereafter a new Govt. was formed by a coalitionconsisting of BJP MLAs and rebel MLAs of Shiv Sena, with Mr.Shinde as the Chief Minister –Discretion and power of governor toinvite a person to form the Government – Extent of – Held: Thediscretion to call for a floor test is not an unfettered discretion butone that must be exercised with circumspection, in accordance withthe limits placed on it by law – The Governor had no objectivematerial on the basis of which he could doubt the confidence of the incumbent government – The resolution on which the Governorrelied did not contain any indication that the MLAs wished to exitfrom the MVA government – Communication expressing discontenton the part of some MLAs is not sufficient for the Governor to callfor a floor test – The Governor ought to apply his mind to thecommunication or other material before him to assess whether theGovernment seemed to have lost the confidence of the House – The34 Shiv Sena MLAs did not express their desire to withdraw supportfrom the MVA Government in the resolution – The floor test cannotbe used as a medium to resolve internal party disputes or intra partydisputes – In the present case, the Governor did not have anyobjective material before him to indicate that the incumbentgovernment had lost the confidence of the House and that he shouldcall for a floor test – Hence, exercise of discretion by the Governorin this case was not in accordance with law – The Governor wasnot justified in calling upon Mr. Thackeray to prove his majority onthe floor of the House because he did not have reasons based onobjective material before him, to reach the conclusion that Mr.Thackeray had lost the confidence of the House – However, thestatus quo ante cannot be restored because Mr. Thackeray did notface the floor test and tendered his resignation – The Governorwas justified in inviting Mr. Shinde to form the government.Constitution of India – Art.153 – Position of Governor – InInternal Disputes of a Political Party – Split in Political Party –Held: The Governor is the titular head of the State Government –He is a constitutional functionary who derives his authority fromthe Constitution and he cannot exercise a power that is not conferredon him by the Constitution or a law made under it – Neither theConstitution nor the laws enacted by Parliament provide for amechanism by which disputes amongst members of a particularpolitical party can be settled – They certainly do not empower theGovernor to enter the political arena and play a role (howeverminute) either in inter-party disputes or in intra-party disputes.Constitution of India: Tenth Schedule and Arts.32 & 226 –Power and Jurisdiction of Court – To adjudicate uponDisqualifications of Legislative Members – Held: Disqualificationof a person for being a member of the House has drasticconsequences for the member concerned and by extension, for thecitizens of that constituency – Supreme Court should normally refrain from deciding disqualification petitions at the first instance, havingdue regard to constitutional intendment – The question ofdisqualification ought to be adjudicated by the constitutionalauthority concerned, namely the Speaker of the Legislative Assembly,by following the procedure prescribed – The Speaker must decidedisqualification petitions within a reasonable period.Constitution of India: Art.181 – Reference to Larger Bench –Whether a notice for removal of a Speaker restricts them fromcontinuing with disqualification proceedings under Tenth Scheduleas held by this Court in Nabam Rebia – Held: Although the decisionin Nabam Rebia is not applicable to the factual scenario, however,Nabam Rebia is in conflict with the judgement in Kihoto Hollohan – Itappears that the majority in Nabam Rebia did not consider the effectand import of Article 181 of Constitution of India – Hence, thedecision in Nabam Rebia merits reference to a larger Bench becausea substantial question of law remains to be settled.Constitution of India: Tenth Schedule – MaharashtraLegislative Members (Removal of Disqualification) Act, 1956 – s.23– Maharashtra Legislative Assembly (Disqualification on Groundof Defection) Rules 1986 – Rule 3(1)(a) & 6 – Appointment of Whip– Difference between Political Party and Legislature Party – Held:The political party and not the legislature party appoints the Whipand the Leader – The Tenth Schedule would become unworkable ifthe term ‘political party’ is read as the ‘legislature party’ – A cleardemarcation is made between political party and legislature partyfor the purpose of a merger under Paragraph 4 – To read the term‘political party’ as ‘legislature party’ would be contrary to the plainlanguage of the Tenth Schedule – Direction to vote in a particularmanner or to abstain from voting is issued by the political partyand not the legislature party – The Speaker must recognize the Whipand the Leader who are duly authorised by the political party afterconducting an enquiry in this regard.Constitution of India – Arts. 189(2) and 190(3) – Decision ofSpeaker – Disqualification of Member – Validity of Proceedings ofthe Legislature – Held: An MLA has the right to participate inproceedings of the House regardless of the pendency of any petitionsfor their disqualification – Validity of proceedings of the House inthe interregnum is not “subject to” outcome of the disqualification petitions – Decision of the Speaker does not relate back to the datewhen the MLA indulged in prohibitory conduct – The decision ofthe Speaker and the consequences of disqualification areprospective – If a member incurs disqualification under the TenthSchedule, it does not automatically result in their expulsion fromthe political party to which they belong.Constitution of India – Tenth Schedule – Election Symbols(Reservation and Allotment) Order, 1968 – Para 15 – Held: TheSpeaker and the ECI are empowered to concurrently adjudicate onthe petitions before them under the Tenth Schedule and underParagraph 15 of the Symbols Order respectively.Election Symbols (Reservation and Allotment) Order, 1968 –Para 15 – Held: While adjudicating petitions under Paragraph 15of the Symbols Order, the ECI may apply a test that is best suited tothe facts and circumstances of the case before it.Constitution of India – Tenth Schedule – Para 2(1) and Para3 –Deletion of Paragraph 3 of the Tenth Schedule – Effect of –Held: Is that the defence of ‘split’ is no longer available to membersfacing disqualification proceedings – The Speaker would prima faciedetermine who the political party is for the purpose of adjudicatingdisqualification petitions under Paragraph 2(1) of the TenthSchedule, where two or more factions claim to be that political party– When there are two Whips appointed by two or more factions ofthe political party, the Speaker decides which of the two Whipsrepresents the political partyConstitution of India – Tenth Schedule – Para 2 & 3 – ElectionSymbols (Reservation and Allotment) Order, 1968 – Para 15 –Determination of, by Election Commission of India – Which groupconstitutes the political party – Allotment of Symbol – Held: Thetest of majority in the legislative and organisational wings of theparty is not the only or primary test – The ECI is free to fashion atest suited to the facts and complexities of the specific case before it– In some cases, it is futile to assess which group enjoys a majorityin the legislature – Other tests include an evaluation of the majorityin the organisational wings of the political party, an analysis of theprovisions of the party constitution, or any other appropriate test –ECI to refrain from passing a subjective judgment on the approachespreferred by rival factions by applying the test of whether rival groups are adhering to the aims and objects of the party asincorporated in its constitution – Decision of ECI need not beconsistent with the decision of the Speaker – Decision of the ECIhas prospective effect – Disqualification proceedings before theSpeaker cannot be stayed in anticipation of the decision of theECI.Constitution of India – Art.164(1B) – Appointment of ChiefMinister – Pending disqualification petitions – Held: Disqualificationis triggered only if disqualification incurred under the TenthSchedule – Mere institution of a disqualification petition does nottrigger some or all of the consequences which flow from thedisqualification itself.
Judge	Hon'ble Dr. Justice D.Y. Chandrachud
Neutral Citation	2023 INSC 516
Petitioner	Subhash Desai
Respondent	Principal Secretary, Governor Of Maharashtra & Ors.
SCR	[2023] 8 S.C.R. 857
Judgement Date	2023-05-11
Case Number	493

Sl.	Authority	Responsibilities	Communication Details
1	Ministry of Education (GoI), Department of Higher Education	Sanctioning Authority	https://www.education.gov.in/ict-initiatives
2	Indian Institute of Technology Kharagpur	Host Institute of the Project: The host institute of the project is responsible for providing infrastructure support and hosting the project	https://www.iitkgp.ac.in
3	National Digital Library of India Office, Indian Institute of Technology Kharagpur	The administrative and infrastructural headquarters of the project	Dr. B. Sutradhar bsutra@ndl.gov.in
4	Project PI / Joint PI	Principal Investigator and Joint Principal Investigators of the project	Dr. B. Sutradhar bsutra@ndl.gov.in Prof. Saswat Chakrabarti will be added soon
5	Website/Portal (Helpdesk)	Queries regarding NDLI and its services	support@ndl.gov.in
6	Contents and Copyright Issues	Queries related to content curation and copyright issues	content@ndl.gov.in
7	National Digital Library of India Club (NDLI Club)	Queries related to NDLI Club formation, support, user awareness program, seminar/symposium, collaboration, social media, promotion, and outreach	clubsupport@ndl.gov.in
8	Digital Preservation Centre (DPC)	Assistance with digitizing and archiving copyright-free printed books	dpc@ndl.gov.in
9	IDR Setup or Support	Queries related to establishment and support of Institutional Digital Repository (IDR) and IDR workshops	idr@ndl.gov.in

Subhash Desai Vs. Principal Secretary, Governor of Maharashtra & Ors.

Please Log-in to view this content

Manohar Lal Sharma Vs. The Principal Secretary & Ors.

State of Punjab Vs. Principal Secretary to The Governor of Punjab and Another

Shrimanth Balasaheb Patil Vs. Hon’ble Speaker, Karnataka Legislative Assembly and Others

State of Punjab Vs. Principal Secretary to The Governor of Punjab and Another

Alagaapuram R. Mohanraj & Others Vs. Tamil Nadu Legislative Assembly Rep. By Its Secretary & Another

N. Radhakrishnan @ Radhakrishnan Varenickal Vs. Union of India and Others

Endupuri Narasimham and Son Vs. The State of Orissa and Others

Reepak Kansal Vs. Secretary General, & Ors.

Pramod Vs. State of Maharashtra& Ors.

Subhash Desai Vs. Principal Secretary, Governor of Maharashtra & Ors.

Subhash Desai Vs. Principal Secretary, Governor of Maharashtra & Ors.

Please Log-in to view this content

Similar Documents

Manohar Lal Sharma Vs. The Principal Secretary & Ors.

State of Punjab Vs. Principal Secretary to The Governor of Punjab and Another

Shrimanth Balasaheb Patil Vs. Hon’ble Speaker, Karnataka Legislative Assembly and Others

State of Punjab Vs. Principal Secretary to The Governor of Punjab and Another

Alagaapuram R. Mohanraj & Others Vs. Tamil Nadu Legislative Assembly Rep. By Its Secretary & Another

N. Radhakrishnan @ Radhakrishnan Varenickal Vs. Union of India and Others

Endupuri Narasimham and Son Vs. The State of Orissa and Others

Reepak Kansal Vs. Secretary General, & Ors.

Pramod Vs. State of Maharashtra& Ors.

Subhash Desai Vs. Principal Secretary, Governor of Maharashtra & Ors.