SUBHASH DESAI VS PRINCIPAL SECRETARY, GOVERNOR OF MAHARASHTRA AND ORS


“Famously known as REAL SHIVSENA case”

Dated: 11 th may 2023

On November 28th, 2019, Uddhav Thackeray, leader of Shiv Sena and head of the Maha
Vikas Aghadi (MVA), became the Chief Minister of Maharashtra through the MVA alliance
with the Nationalist Congress Party and the Indian National Congress. However, on June
21st, 2022, Eknath Shinde, a key Shiv Sena leader, along with several other MLAs, went
missing, expressing discontent with the MVA alliance and lack of confidence in Thackeray’s
leadership. They moved to Surat and then Gauhati, claiming ideological differences.
Disqualification proceedings were initiated against the rebel group by the Thackeray faction,
leading to a legal battle. The rebel group, led by Shinde, approached the Supreme Court
disputing the disqualification, which resulted in an unusual intervention by a Vacation Bench
granting them extended time to respond.
Simultaneously, the rebel faction sought the removal of the Deputy Speaker and withdrew
support from the MVA alliance, prompting the Governor to call for a floor test on June 30th,
2022, to assess Thackeray’s government’s stability. Despite a challenge from the Thackeray
faction in the Supreme Court, the floor test proceeded as scheduled, with the Court stating its
outcome would be contingent on further legal proceedings. Thackeray resigned before the
test took place.
The legal battle continued with the case referred to different benches, eventually landing
before a 5-Judge Constitution Bench in February 2023. During these proceedings, the
Electoral Commission of India allotted the name and symbol of Shiv Sena to Shinde’s faction,
further complicating matters. Thackeray’s side argued for the disqualification of the rebel
faction, citing defection.
Reference was made to precedents such as the Nabam Rebia case, highlighting the limitations
on the Speaker’s authority in disqualification matters when facing a motion for their own
removal. However, a subsequent decision to reconsider this ruling was made by a 5-Judge
Bench, indicating the evolving legal landscape surrounding such disputes. The political and

legal turmoil in Maharashtra underscored the complexities of alliance politics and the
interplay between legal interpretation and legislative processes.

ISSUES RAISED
1.) The issue at hand pertains to determining whether internal divisions within a political
party equate to defection from said party? Specifically, the question arises as to
whether the actions taken by Mr. Eknath Shinde and other MLAs, rebelling against
former Chief Minister Mr. Uddhav Thackeray, can be categorized as defection.
2.) Whether Shinde faction can be subject to disqualification proceedings under the Tenth
Schedule?

CONTENTION
1 *Appellant’s Argument
The lawyer (kapil sibal) representing the appellant argued that a previous judgment in the
Nabam Rebia v Deputy Speaker case 2 needs to be reconsidered by a larger bench of seven
judges. This judgment restricts the Speaker from handling disqualification cases while facing
potential removal, which the Thackeray group believes hampers the Speaker’s authority.
Furthermore, the lawyer stated that according to the Constitution, courts have the power to
determine if an MLA should be disqualified under the Tenth Schedule (2)(1)(a) In this case,
they argued that the legislators led by Mr. Eknath Shinde should be disqualified because they
purposefully skipped important meetings and made unlawful decisions, such as appointing
Mr. Shinde as the Leader of the SSLP (shivsena legislative party) and Mr. Gogawale as the
Chief Whip. Additionally, they mentioned that Mr. Shinde’s group allied with the BJP against
the Shiv Sena’s wishes.
*Respondent ‘Argument
The lawyer (harish salve) representing the respondent argued that it is unnecessary to refer
the decision in the Nabam Rebia case to a larger bench of seven judges as claimed by the
appellant side. They asserted that the Nabam Rebia decision is grounded in ethical and

constitutional principles. The argument further elaborated that if a Member of the Legislative
Assembly (MLA) is wrongly disqualified by the Speaker and the court overturns this
disqualification, it would mean the MLA was denied the opportunity to vote on the resolution
for the Speaker’s removal and to participate in other House proceedings. Conversely, if the
Speaker is unjustly removed from office, they still retain their membership in the House and
consequently maintain the right to take part in House proceedings.

RATIONALE
The supreme court observed that the Governor should not have ordered a floor test because
there was not enough solid evidence to doubt the confidence the elected government had
from the House. They explained that letters from some MLAs or the Leader of the Opposition
asking for a floor test alone were not good enough reasons to call for one. Additionally, the
Court emphasized that decisions like calling for a floor test should be based on solid reasons
and evidence directly related to the situation, not just random ones. They stressed that the
Governor should not use their power to make elected governments unstable or replace them
without good reasons.
The Supreme Court also mentioned that since Mr. Thackeray resigned before facing the floor
test, things could not go back to how they were. Therefore, the Governor was right to ask Mr.
Shinde to form the government. 3
The Court also said that both the Speaker and the ECI have the power to deal with petitions
under the Tenth Schedule and Paragraph 15 of the Symbols Order respectively. They can both
handle these petitions at the same time, and the ECI can use the best approach depending
on the situation.

DEFECTS OF LAW
One way the court could have done better is by giving clearer rules for when the Governor
should order a floor test. Although the court said there must be good reasons and evidence for
a floor test, it did not say exactly what counts as enough evidence. Making this clearer could
make sure similar situations are handled fairly in the future. 4
Also, the court could have looked at other ways to fix the problems in Maharashtra, like
talking things out between the parties involved, to be more precise mediating between them,

While the court had to step in to solve legal issues, trying different ways to solve the conflict
might have been more helpful. In general, even though the court’s decision dealt with
important legal matters and gave guidance on what constitutional authorities should do, there
were chances to make the decision-making process fairer and better by giving clearer rules,
thinking about the bigger picture, and trying other ways to solve the problem.

INFERENCE
The Supreme Court, led by Chief Justice D Y Chandrachud along with Justices M.R. Shah,
Krishna Murari, Hon’ble Ms. Kohli, and Pamidighantam Sri Narasimha, stated that
Maharashtra Governor “Bhagat Singh Koshyari” was not right in asking for a floor test on
June 30, 2022. This was because he did not have enough evidence to prove that the current
government had lost the trust of the House. The Governor does not have the authority to get
involved in political disputes within or between parties. The Thackeray group wanted to go
back to the situation before June 29, 2022, but the Supreme Court said it could not bring back
the Uddhav government because he resigned and did not face the floor test.
This case illuminates the delicate equilibrium between constitutional principles, political
dynamics, and judicial intervention when addressing governance crises. It emphasizes the
necessity for clarity and transparency in the legal frameworks guiding the actions of
constitutional authorities, including Governors, when ordering floor tests. The absence of
explicit criteria for justifying such decisions creates ambiguity and opens the door to potential
misuse of power. Establishing clear guidelines could mitigate arbitrary actions and foster
consistency and fairness in similar circumstances going forward.

AUTHOR NAME – RISHABH SHARMA
COLLEGE NAME – ASIAN LAW COLLEGE, NOIDA

1 INDIAN KANOON, https://indiankanoon.org/doc/12168609/ (Last visited on Mar, 22, 2024)

2 SUPREME COURT OBSERVOR, https://www.scobserver.in/cases/reconsideration-of-nabam-rebia-subhash-
desai-v-principal-secretary-governor-of-
maharashtra/#:~:text=Case%20Description,Shiv%20Sena%20Party%20in%20Maharashtra.( Last visited Mar,
22,2024)

3 LIVE LAW, https://www.livelaw.in/top-stories/shivsena-supreme-court-maharashtra-case-uddhav-thackeray-
eknath-shinde-228476
(Last visited on Mar, 21, 2024)
4 THE HINDU, https://www.thehindu.com/news/national/cji-asks-if-speaker-did-not-contradict-sc-to-bank-on-
legislative-majority-to-decide-shinde-camp-as-real-shiv-sena/article67925064.ece
( Last visited on Mar,
20,2024)