EQUIVALENT CITATIONS	AIR SC 1501
DATE OF JUDGEMENT	11^th MAY 2023
COURT	Supreme Court of India
CASE NO.	WP(C) 493/2022
CASE TYPE	Writ Petition
PETITIONER	Subhash Desai
RESPONDENT	Principal secretary governor of Maharastra
BENCHJustice	ce DY Chandrachud, Justice MR Shah Justice Heema Kolhi, Justice P Narasimah
LEGAL PROVISIONS	X schedule othe f constitution, Article 238, 153.154,155 & Anti Defection & Status Quo

BACKGROUND OF THE CASE

Shiv Sena party member Mr. Eknath Shinde, went missing along with several of party MLAs who then refused to attend a meeting called by Mr. Uddhav Thackeray. As a consequence, Mr. Shinde was removed from the post of Legislature-Party leader. Mr. Shinde claimed that he had the support of over 40 MLAs, and Mr. Thackeray was no longer the party’s chosen representative. 24th July, 2022: Mr. Thackeray urged the Deputy Speaker to begin disqualification proceedings against Mr. Eknath Shinde and other rebel MLAs. Mr. Shinde challenged the proceedings in the SC and got a stay order.

On 28th June 2022: The Governor of Maharashtra was requested to direct a floor test in the Assembly and the same was affirmed. Thackeray faction challenged the floor test but the Apex Court declined to stay it. Thereafter, Chief Minister Thackeray resigned within an hour, making way for the Shinde faction to consolidate power. The Thackeray faction argued that actions like disregard for the party whip, appointment of a new Deputy Speaker, call for r floor test, and insistence of the Shinde faction’s majority were acts of defection. Meanwhile, the Shinde faction approached the EC to use the party symbol in upcoming local polls.

FACTS OF THE CASE

This case was admitted on 7^th September 2022, Shiv Sena leader and head of the Maha Vikas Aghadi (MVA) Mr. Uddhav Thackeray was sworn in as the Chief Minister of Maharashtra. MVA is an alliance between the Shiv Sena, the Nationalist Congress Party, and the Indian National Congress.

On June 21st, 2022, Mr. Eknath Shinde, the leader of the Shiv Sena in the Legislative Assembly, went missing witseveralof other Shiv Sena MLAs. The ‘rebel’ group first moved to Surat, and then to Gauhati. They claimed that the MVA alliance was against the Shiv Sena ideology and that they did not have confidence in the MVA alliance and CM Thackeray. The Thackeray group initiated disqualification proceedings against the rebel group and sent a notice on Jun25th, 2022, for acting against party interests. The rebel group was given 48 hours to respond to the notice. On June 26th, 2022, Mr. Shinde moved the Supreme Court of India to dispute the disqualification proceedings initiated against him and the other ‘rebel’ MLAs.

On June 27th, 2022, a Vacation Bench of the SC comprising Justices Surya Kant and J.B. Pardiwala issued an unusual Order. The Bench gave the rebel group 12 days of ‘breathing time’ to respond to the disqualification notice issued on June 25th, by the Deputy Speaker (Acting Speaker). The normal time to respond to the notice of disqualification is 7 days. The Court’s intervention was unexpected. Usually, the Court does not intervene in ongoing proceedings of the House and waits for the Speaker’s decision, which it may later review.

The Shinde group also issued notice for the Deputy Speaker’s removal from his post. At the same time, the Shinde group also approached Governor Bhagat Singh Koshyari. They expressed their withdrawal of support for the MVA alliance. The Governor directed that a floor test be conducted on June 30th to see if the Uddhav Thackeray government still commanded the support of the Maharashtra Legislature.

The Thackeray faction challenged the floor test before the SC in light of the pending disqualification proceedings against the rebel MLAs. However, the Court refused to stay the floor test on June 29, 2022, stating that the results of the floor test would be subject to the outcome of the hearings before the SC. Soon after the SC’s Order, CM Thackeray resigned without facing the floor test.

On August 22nd, 2022 a 3-judge Bench comprising former CJI N.V. Ramana and Justices Krishna Murari and Hima Kohli referred the case to a 5-Judge Constitution Bench.

A 5-judge Constitution Bench led by CJI D.Y. Chandrachud began hearing the case on February 14th, 2023. During this hearing, the Thackeray side requested the case to be referred to a 7-judge Bench. After hearing the parties, the Bench on February 17th, 2023, decided to not transfer the case to a larger Bench before hearing it in detail.

On February 17th, 2023, the Electoral Commission of India (ECI) allotted the name Shiv Sena and the party symbol of bow and arrow to Shinde’s faction. On February 21st, 2023, the Thackeray side began arguing that the Shinde faction must be disqualified as their actions amounted to defection.^[1]

ISSUES RAISED

Whether the notice of removal of the speaker restricts him from continuing the disqualification proceedings under Schedule X of the Indian Constitution and whether a court can hold that a member is deemed to be disqualified under his/her actions absent a decision by the Speaker.
What is the scope of the power of the Speaker to determine the whip and leader of another house of the legislative party?
Power of the governor to invite a person to form the government and whether the same is amenable to judicial review?
What is the scope of the powers of the f Election Commission of Indiconcerningto deterring an ex parte split within a party?^[2]

CONTENTION OF THE CASE

PETITIONER’S ARGUMENT

The Thackeray faction filed petitions over the decision of the Maharashtra Governor to call for a trust vote, the alleged illegal swearing-in of Eknath Shinde as the Chief Minister of the State, the proposal of election of a new Speaker …

He had also challenged the validity of Governor Bhagat Singh Koshiyari to ask for a faced floor test. In this petition, he has also argued that kindly remove Eknath Shindey from the post of Chief Minister which has been attained by not following the appropriate procedure of law post shall be returned to him. A legislator loses their membership in the House under Article 191(2) of the Constitution, if he is disqualified under the Tenth Schedule.

The Thackeray faction claimed that the Shinde faction’s actions—disregard for the party Whip, the appointment of a new Deputy Speaker, the call for a floor test, and insistence of the Shinde faction’s majority—are all acts of defection. They also argued that the floor test called by the Governor was illegal and that by calling for the floor test, the Governor essentially recognized a ‘split’ in the party. Once an exception to the defection law, splits no longer protect elected members from being disqualified for defection.

Further, they argued that the SC must reconsider its decision in the Nabam Rebia case (2016). This Judgement held that a Speaker could not initiate disqualification proceedings against members of the House if there is a pending notice for his removal. The Thackeray faction argued that members facing defection had an easy solution to halt proceedings. They could merely file a notice for the Speaker’s removal.

RESPONDENT’ARGUMENTNT

Shinde faction of MLAs claimed that they did not defect from the Shiv Sena. Their actions resulted from internal dissent and they represent the ‘real’ Shiv Sena. Further, in matters relating to the disqualification of MLAs, it was the Speaker of the House and not the SC that had the authority to make a decision.

They also argued that the Governor was within his rights to order a floor test as he had enough reason to believe that Mr. Thackeray did not enjoy the majority of the House.

Moreover, they argued that Nabam Rebia (2016) made it clear that when a notice for removal of a Speaker is pending in the House, he cannot conduct disqualification proceedings against other members of the House.

RATIONALE OF THE CASE

The bench cautioned the Governor could not have entered the internal party dispute by ordering the floor test, particularly in the absence of any “objective material” to dislodge the presumption of confidence of the f House ingrained in a democratically elected government. It said letters by some MLAs (or even by then Leader of Opposition in this case) for a direction to the Chief Minister to prove his majority does not, taken alone, amount to a relevant reason to call for a floor test

The Court placed strong reliance on the MP Political Crisis case, which held that the decision to call for a floor test should be based on objective material and reasons which are relevant and germane to the exercise of discretion, and not extraneous to it. The Court emphasized that the Governor should not use their discretionary power to destabilize or displace democratically elected governments.

The Governor was not justified in calling upon Mr. Thackeray to prove his majority on the floor of the House because he did not have reasons based on objective material before him, to conclude that Mr. Thackeray had lost the confidence of the House. However, the status quo ante cannot be restored because Mr. Thackeray did not face the floor test and tendered his resignation; and The Governor was justified in inviting Mr. Shinde to form the government. The decision in Shrimanth Balasaheb Patil applied the principle that disqualification relates to the date on which the act of defection takes place to mean that acts or even after the commission of the conduct prohibited under the Tenth Schedule, do not have an exculpatory effect.

In other words, subsequent acts or events do not have the effect of curing such conduct or releasing the actor from the consequences that follow. This is consistent with the decision in Rajendra Singh Rana (supra). Mr. Shinde’s appointment is therefore not barred by Article 164(1B) of the Constitution.

ANALYSIS OF THE CASE

While deciding disqualification pleas, the Speaker must consider the constitution of the political party (as submitted to ECI)The Speaker should decide on pending disqualification petitions in a reasonable timeframe. The other observations include that MLAs have the right to participate in proceedings of the House regardless of the pendency of any petitions for disqualification. The significance and importance of floor test was also held. A floor test is to be conducted by the Governor only on obtaining objective material to show that the incumbent government had lost the confidence of the House. While deciding disqualification pleas, the Speaker must consider the constitution of the political party (as submitted to ECI)The Speaker should decide on pending disqualification petitions in a reasonable timeframe. The other observations include that MLAs have the right to participate in proceedings of the House regardless of the pendency of any petitions for disqualification. The significance and importance of floor test was also held. A floor test is to be conducted by the Governor only on obtaining objective material to show that the incumbent government had lost the confidence of the House.

INFERENCE OF THE CASE

This judgment was in favor of Udhav Thackeray but somewhere, in reality, EknatShindeyey won because Udhav Thackeray’s Post could not be returned to him just because he gave his resignation voluntarily, cannot quash the resignation the CM post will be the Same to Eknath shindeyThe court held that STATUS QUO cannot be restored since Thackeray did not face the floor test.

Dissenand disagreement of Politicapartiesty must be resolved under the remedies provided constitution governoror called for a floor test only on the request received from 34 MLAs, In the communications of the letter it was mentioned that they wanted to switch the parties so it could not be presumd, court also said that governor must exercise his powers within the limits conferred by Constitution.

SUGGESTIONS

Udhav Thackeray was given his resignation, This decision was incorrect and he did not face the floor test result, the court could not pass the order status quo. he would not resign by himself so his post of Chief Minister could be saved. The

The governor presumed that the letter sent by MLAs was not the right reason for calling a floor test. MLAdore does not support part y, nowhere was mentioned the letter of request that they want to leave the party, it was just that they were not satisfied with the policy other Party. Here Governor’s decision was partly biased somewhere.