In a landmark Constitution Bench decision on Maharashtra’s political turmoil, Supreme Court affirms Speaker’s exclusive power on disqualification, clarifies role of Governor and Election Commission, and directs enquiry into Shiv Sena leadership dispute.
The Supreme Court of India, in a Constitution Bench judgment dated May 11, 2023, resolved multiple complex issues arising from the political upheaval in Maharashtra involving the Shiv Sena party split and government formation in 2022. The case, Subhash Desai v. Principal Secretary, Governor of Maharashtra, addressed questions about the Speaker’s authority under the Tenth Schedule of the Constitution, the Governor’s discretionary powers, the role of the Election Commission of India (ECI), and the validity of legislative proceedings during pending disqualification petitions.
Background
The political crisis unfolded after the 2019 Maharashtra Assembly elections where the Shiv Sena, Nationalist Congress Party (NCP), and Indian National Congress (INC) formed the Maha Vikas Aghadi (MVA) government with Uddhav Thackeray as Chief Minister. Mid-2022, the Shiv Sena split into two factions—one led by Uddhav Thackeray and another by Eknath Shinde, who later formed a government with BJP support. The turmoil triggered multiple disqualification petitions under the anti-defection law, disputes over party leadership and whips, and questions over the Governor’s powers to call floor tests and invite government formation.
Key Findings and Directions of the Court
1. Speaker’s Jurisdiction and Nabam Rebia Case:
The Court held that the Speaker of the State Legislative Assembly is the appropriate constitutional authority to decide disqualification petitions under the Tenth Schedule. It clarified that the ruling in Nabam Rebia & Bamang Felix v. Deputy Speaker (2016), which held that a notice for removal of the Speaker bars disqualification proceedings, does not apply to the facts of this case. Recognizing conflicting views, the Court referred the correctness of the Nabam Rebia decision to a larger Bench of seven judges for final adjudication.
2. Adjudication of Disqualification Petitions:
The Supreme Court emphasized that it ordinarily will not entertain petitions for disqualification under Articles 32 or 226 without extraordinary circumstances. The Speaker must decide disqualification petitions within a reasonable time frame. The Court rejected the notion that members are “deemed” disqualified by their conduct absent the Speaker’s decision. Until the Speaker’s order, MLAs have the right to participate fully in the Assembly proceedings.
3. Validity of Assembly Proceedings During Pending Disqualification Petitions:
The Court ruled that the validity of proceedings, including the election of the Speaker and confidence motions, is not “subject to” the outcome of pending disqualification petitions. Members facing such petitions retain the right to participate in the Assembly’s legislative processes.
4. Whip and Leader Appointment Authority:
It was held that the political party (not the legislature party) appoints the Whip and the Leader of the party in the Assembly. Directions to vote or abstain must come from the political party or an authority authorized by it. The Court found the Speaker’s recognition of a Whip appointed by a faction without verifying authorization from the political party’s constitution to be illegal. The Speaker must conduct an enquiry to identify the duly authorized Whip and Leader.
5. Concurrent Jurisdiction of Speaker and Election Commission:
The Speaker and the Election Commission of India have concurrent jurisdiction to adjudicate disputes under the Tenth Schedule and Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968. While the Speaker decides disqualification petitions, the ECI decides which faction is the “real” political party entitled to the reserved electoral symbol. The ECI may apply the test best suited to the facts and circumstances of the case.
6. Impact of Deletion of Paragraph 3 of the Tenth Schedule:
The Court clarified that the defence of “split” within a political party, which previously protected defecting legislators, was removed by the 2003 constitutional amendment. Consequently, no faction can claim to be the original political party for the purpose of avoiding disqualification. The Speaker must prima facie determine which faction constitutes the political party when multiple factions claim legitimacy.
7. Governor’s Discretion and Floor Test:
The Governor was found not justified in calling upon Uddhav Thackeray to prove majority on the floor of the House in June 2022, as there was no objective material to conclude loss of confidence. However, since Thackeray resigned before the floor test, status quo ante could not be restored. The Governor’s subsequent invitation to Eknath Shinde to form government was held valid.
8. Reference to Larger Bench:
A substantial question of law regarding whether a notice of intention to move a resolution for removal of the Speaker restricts disqualification proceedings under the Tenth Schedule was referred to a seven-judge Bench for detailed consideration.
Significance
This judgment is a comprehensive exposition of the constitutional scheme governing defections, the role of the Speaker as a quasi-judicial authority, and the interplay between different constitutional authorities in the context of party splits and government formation. It underscores the importance of procedural propriety, clarifies the powers of the Governor, and maintains the sanctity of legislative proceedings during political turmoil. The Court also reinforces that political parties, as recognized entities, are central to anti-defection law enforcement and that intra-party disputes must be resolved following constitutional and legal frameworks.
Statutory provisions
Article 32, Article 179(c), Article 180, Article 181, Article 189(2), Article 190(3), Article 191(2), Article 212, Article 364-B, Article 164(1B) of the Constitution of India; Tenth Schedule to the Constitution of India; Maharashtra Legislature Members (Removal of Disqualification) Act, 1956 Section 23; Maharashtra Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986; Representation of the People Act, 1951 Section 29A; Election Symbols (Reservation and Allotment) Order, 1968 Paragraph 15.
