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CASE COMMENT ON SUBHASH DESAI V.  PRINCIPAL SECRETARY, GOVERNOR OF MAHARASHTRA & [1] ORS.

Case Comment, Publications

Prologue:

“The stopping of the judicial courts, had been blended, in the minds of some people, with the redress of grievances, considered only as a mode of awakening the attention of the legislature.”

We will plunge towards the depth of the meaning of the above quote through the comprehensive study of the recent Supreme Court’s judgement on Maharashtra political saga.

ShivSena was founded in the year 1966. By the year 2018, it is recognized by Election Commission of India (ECI) as a state political party wherein Mr. Uddhav Thakre was elected as the party president. The period during 2019 – 2022 witnessed that ShivSena allied with BJP to form a government wherein Mr. Thakre was sworn in as the chief minister of Maharashtra. Mr. Eknath Shinde was the group leader of ShivSena Legislative party and Mr. Sunil Prabhu hold the charge as chief whip.

The month of June envisioned that after developing some altercations, the party was fractured into two major fragments wherein one faction was led by Mr. Thakre and another by Mr. Shinde.

With twisted views of both these leaders, a few resolutions were passed relating to the appointments of members. Both of them claimed that the appointment made by the rival faction was illegal and invalid and these resolutions were not adhered to appropriate provisions. This disharmony resulted into the filing of the disqualification petitions under the 10th Schedule of Constitution of India.

Schedule 10 contains provisions related to the disqualification of members of legislatures (both Parliament and state legislatures) on the grounds of defection. It aims to prevent legislators from switching parties without consequences. Anyone who had been disqualified under the 10th Schedule became automatically disqualified from being appointed a minister, both at the central and state level. The change was brought about by the insertion of Clause (1-B) in Article 75 and Clause 1 (B) in Article 164 of the Indian Constitution.

The suspicion that Mr. Thakre lacks majority support was brought to the table by Mr. Fadnavis, the then opposition leader, through a letter to the governor. Based on this communication, the governor asked Mr. Thakre to face the floor test on 30th June. But before this test could held, on 29June, Mr. Thakre resigned from his post.

Finding that the office of the chief minister is vacant since then, Mr. Fadanvis informed the governor that 106 MLAs of BJP and 8 other independent MLAs extend their support to Mr. Shinde. The governor asked Mr. Shinde to constitute government and to take oath as the CM. The governor on June 30th onwards administered the oath to Mr. Shinde as the Chief Minister.

Later in a weak, on 4th July, the governor asked Mr. Shinde to prove his majority in the assembly. The speaker’s elections were held and thereby BJP’s Mr. Rahul Narwekar emerged to be victorious and was appointed as the official speaker of the assembly. He reaffirmed Mr. Shinde as group leader of assembly and Mr. Bharat Gogavale as chief whip of the party. 

Mr. Shinde proved his majority and from the same day, he was declared as official chief minister of the Maharashtra. Later, on 17th July, he filed a petition before the Election Commission of India under paragraph 15 of Election Symbols (Reservation and Allotment) Order, 1968 wherein he asked the Election Commission to grant the Party symbol of the ShivSena legislative party i.e. the bow and arrow to the faction led by him and consequently on 17th October 2022 the ECI made an order and granted the Party symbol to Mr. Shinde and faction. 

These facts forms a pedestal behind filing of certain petitions before the Apex Court of the country. 

The first petition that was filed by Mr. Shinde wherein he had challenged the notices wherein the rival group had disqualified the MLAs of Shinde faction.

Consequently Mr. Uddhav thakre also approached the Honorable Supreme Court of India and filed certain repetitions wherein he had challenged the decision of the governor in calling Mr. Thakre to face a floor test; secondly he had also challenged the appointment of Mr. Shinde as the chief minister of Maharashtra and thirdly he had also challenged the appointment of Mr. Narwerkar and thereby these petitions that came to be listed before the Constitutional bench.

Facts of Case:

  1. As we read earlier, in Maharashtra’s intricate political shade, the Shiv Sena emerges as a significant player, tracing its origins back to 1966. Mr. Uddhav Thakre’s ascent to Party President in January 2018 marked a defining moment, setting the stage for coming developments. On November 28th, 2019, Mr. Uddhav Thackeray, leader of the Shiv Sena and head of the Maha Vikas Aghadi( MVA) assumed office as the Chief Minister of Maharashtra.   
  2. On June 21st, 2022, Mr. Shinde, leader of the Shiv Sena in the Legislative Assembly, along with several other Shiv Sena MLAs, disappeared, professing ideological discontent with the MVA alliance and lack of confidence in CM Thackeray. The Thackeray body initiated disqualification proceedings against the differing members that incited Mr. Shinde to seek legal expedient by moving the Apex Court.
  3. The Court, through a Vacation Bench comprising judges Surya Kant and J.B. Pardiwala granted time extension to the dissenting body to revert back to the disqualification notice issued.
  4. Contemporaneously, the Thakre block issued a notice discarding the Deputy Speaker followed by withdrawal of support from MVA. The Governor, then, called for a floor test to ascertain the government’s legislative support. The Supreme Court declined the Thakre block’s plea to injunct the floor test that leads to CM Thakre’s resignation. The case was subsequently referred to a 5- Judge Constitution Bench on August 22nd, 2022.
  5. Further complexity increased when the ECI assigned the name Shiv Sena and its symbol to Shinde bloc on February 17th, 2023. Arguments followed regarding the implicit disqualification of the Shinde bloc for defection, with proceedings ongoing as of February 21st, 2023. Eventually, on May 11, 2023, the awaited judgment regarding this internal strife was delivered, marking a significant chapter in the political spectrum.

Issues Raised:

  1. Whether the notice of removal of the speaker restricts him from continuing the disqualification proceedings under 10th Schedule of the Indian Constitution?
  2. What is the ambit of governor’s power while inviting a member of legislative assembly to face the floor test in order to prove the majority and formation of the government?

Contentions from both the parties:

  1. Petitioners Arguments
  1. First of all, the petitioner raised the contention that whether the speaker of the assembly is restricted from adjudicating on the disqualification petitions under the 10th schedule if a notice for his removal has been issued as held by the Hon’ble Supreme court constitutional bench in Nabum Rabia’s case in 2016. They contended that the Rabia judgment must and ought to be referred to a larger bench because the petitioner said that this judgment is in contradiction to the law laid down Kihoto Hollohan in 1992. 
  2. The petitioners claimed that the interpretation of the Rabia judgment can be misused by the disqualifying MLAs as they would have the power to disable the speaker from deciding the disqualification petitions.
  3. The petitioners submitted that Rabia judgement is in contradiction to the clear mandate and intent of Articles 179 & 181 of the Indian constitution.
  4. Additionally, petitioners contended that the speaker of the assembly is appointed by the disqualifying MLAs and thereby he is biased and partial and therefore the courts must invoke its jurisdiction under Article 32 or Article 226 of the Indian constitution.

(B) Respondent’s Argument:

  1. The respondents stated that this matter need not be referred to a larger bench since the Rabia judgment is based on moral and ethical considerations.
  2. The respondents stated that the Hollohan’ judgment only lays down an exception and it does not lay down in general rule and thereby the law in Rabia judgment is valid and justified and it should be followed as a precedent.
  3. The respondents claimed that the term political party and the legislative party are similar to each other and they are both similar concepts and they can be used interchangeably.

Rationale of Judgement

  1. The court analysed the intent of legislature beneath incorporating Article 179 and power of the speaker Under 10th Schedule of the Indian Constitution and observed that the Nabam Rabia judgment does not apply to the factual Matrix of the present case.
  2. The court meticulously observed the stance taken by the three-judge bench when this matter was listed earlier and placed reliance upon the submissions made by parties. The court referred the Rabia judgement to the larger bench constituting of seven judges as substantial question of law about interpretation of constitutional provisions has been arisen. 
  3. The court observed that as per paragraph 6 of the 10 schedule read with the 1986 rules, the speaker of the assembly has the exclusive jurisdiction to decide the disqualification petitions and as per the Kihoto Holohan judgment, the speaker is a tribunal under the tenth schedule of the Indian constitution. Therefore, the decisions given by the speaker can be subject to judicial review under articles 136, 226 or 227 of the Indian constitution. The courts must refrain from interference at the first stance and can only give an opinion or an observation on the disqualification petitions after the decision of the speaker has been rendered.
  4. The court observed that the power of the speaker is specified under paragraph six of the 10th schedule which incorporates exclusive jurisdiction upon the speaker to decide the disqualification petitions.
  5. As the court finds no extraordinary circumstances in the present case, the jurisdiction of the High Court or the Supreme Court need not be invoked as to decide the disqualification petitions. The speaker of the Maharashtra legislative assembly is the only competent Authority to decide the disqualification petitions under the tenth schedule and his/her decision shall be final.
  6. The court observed that under Article 191 sub clause 2 (1-B) and 3 – any member who has been disqualified under the 10 schedule of the Indian constitution for defection shall no longer hold the office of the member of the assembly and shall be disqualified from such post and their seat shall thereupon lay vacant. The court interpreted these provisions and laid down that any member against whom disqualification petitions are lying shall not be disqualified until the speaker gives his final decision and they shall have the right to participate in the proceedings. Being the member of the assembly, they shall hold the office until they have been expressly disqualified or barred by the speaker. Here, the appointment of Mr. Rahul Narwekar cannot be declared to be invalid because disqualification proceedings are lying before the speaker and nothing has been proven as of the date.
  7. The court placed reliance over the judgement of Shivraj Chauhan versus Union of India in which the Hon’ble bench laid down that the decision of the governor in asking a member to face a floor test must be based on objective materials and reasons. The governor has a limited power and discretion in such matter and he should give a decision based on the relevant circumstances. The court, in present case, observed that there were no extraordinary circumstances. Thus the floor test called upon by the governor while exceeding his power was invalid and unjustified. 
  8. Upon petitioner’s contention relating to Mr. Thakre’s reinstatement, the bench remarked that as Mr Thakre did not face the floor test and voluntarily resigned from his position, now the court cannot restore his position.
  9. Furthermore, about the appointment of Mr. Shinde as the chief minister, the court said that the bar of Article 164(1B) applies only in the cases wherein the speaker has given expressed decision of disqualifying a member. Here, the disqualification petitions are pending before the speaker. Additionally, according to the information provided by the then leader of opoosition, Mr. Fadanvis, he enjoys the support of 106 MLAs and other 8 independent MLAs. Thus, the appointment of Mr. Shinde as the CM of Maharashtra was valid and justified in law.

Defects in Law 

  1. As we dived deep to understand the legal implication in the political tussle occurred in Maharashtra legislative assembly, it can be extracted that there has been a dire need to further strengthen anti-defection laws. The case stressed upon the gaps in the Anti-Defection Laws. To ensure stability in the democratically elected government, imposition of strict penalties upon the defenders can become a solution. 
  2. Legal provisions regarding the speaker’s role in disqualification proceedings required to be more accountable. It has to be more well-defined and clear with some explicit time constraints for decision making. Banished delay in such decisions opens a window to create misinterpretations for the best suited selfish political motives.   
  3. There seems a vacuum in the law regarding what steps to follow whenever the situation of internal conflict happens in the political parties. This can be filled up by framing stringent guidelines that are needed to be followed when such situation has been observed.
  4. Lastly and most importantly, absence of definite framework balancing the governor’s power and integrity of popular process was foreseen. India being a democratic state with federal dynamism, the brackets of the governor’s discretionary powers needs to be well prescribed and properly regulated.

Inference:

A unanimous judgement addressing various issues related to the split in the Shiv Sena was passed by the Hon’ble Supreme Court in which remarkable observations were put forth. The matter revolved around role of the then Governor and the speaker of the legislative assembly.

The court significantly interpreted the anti-defection laws and uphold the role of the speaker and his authority to ensure legislative independence. Additionally, the court emphasized the necessity of relevant material reasons to call upon the floor test. It adamantly stressed that governor’s discretion shouldn’t be applied to destabilize or displace legitimately elected administrations. The court, however, refrained from interfering with the proceedings related to disqualifying 16 MLAs, including Chief Minister Eknath Shinde.

Author Name:- Adv. Mukta Zadgaonkar