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Subhash Desai v/s Principal Secretary, Governor of Maharashtra [2023] SC 422

21st June, 2022 : Shiv Sena party member Mr. Eknath Shinde, went missing along with a number 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 June, 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 th8e SC and Got a stay order.

28thJune, 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 the actions like disregard for the party whip, appointment of a new Deputy Speaker, call for 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.

6th September, 2022: SC announced that the case would be decided by a 5-Judge Constitution Bench.

Subhash Desai v. Principal Secretary, Governor of Maharashtra [2023] SC 422
Bench: D.Y.Chandrachud J., M.R.Shah J., Krishna Murari J., Hima Kohli J., P.S.Narasimha J.
Case Admitted : September 07, 2022
Filed on: July 08,2022
Last Date of Hearing: September 27, 2022
Next Date of Hearing: November 01, 2022

Facts Of The Case:
On November 28, 2019, Uddhav Thackeray, the leader of the Maha Vikas Aghadi (MVA) coalition, took the oath of office as Chief Minister of Maharashtra. Eknath Shinde and other Shiv Sena MLAs disappeared on June 21, 2022, alleging ideological disagreements with MVA. They first traveled to Guwahati, then Surat.

On June 25, 2022, the Thackeray group sent a notification to Shinde's dissident group, beginning the disqualification process. Shinde petitioned the Supreme Court on June 26, 2022, to contest the disqualification process.

June 27, 2022: Rather than the customary seven days for such notices, the rebel group is given twelve days to answer by the SC Vacation Bench, which is made up of Justices Surya Kant and J.B. Pardiwala.

June 30, 2022: Following the dissident group's withdrawal of support, the governor calls for a floor test. The SC rejects the Thackeray faction's challenge, but the floor test goes forward. June 29, 2022: After the Supreme Court declines to stay it, Thackeray steps down without taking the floor test.

A 3-judge Bench submits the matter to a 5-judge Constitution Bench on August 22, 2022. CJI D.Y. Chandrachud leads the 5-judge Constitution Bench, which started deliberating the case on February 14, 2023. The bench dismissed the motion from the Thackeray side to move the matter to a seven-judge bench on February 17, 2023.[1]

February 17, 2023: Shinde's group receives the Shiv Sena name and bow and arrow emblem from the Election Commission of India (ECI). February 21, 2023: The Thackeray camp claims that Shinde's group should be disqualified because of their conduct, which they consider to be desertion.

Whether the speaker's notice of dismissal prevents him from carrying out the Schedule X disqualification procedures under the Indian Constitution, and whether a court can rule that a member is disqualified based only on his or her acts in the absence of a determination by the speaker?

How much authority does the Speaker have to choose the parliamentary party's whip and leader of the house?

Is the governor's authority to ask someone to form the government subject to judicial review?

How far does the Election Commission of India have the authority to prevent an ex parte rift inside a party?[2]

Contention From Both The Parties
Petitioner's Argument
In the past, the Thackeray group filed challenges contesting the conduct of the Maharashtra Governor's trust vote, the purportedly improper swearing-in of Eknath Shinde as the State's Chief Minister, and the proposition to elect a new Speaker.

They also disputed the legitimacy of Governor Bhagat Singh Koshiyari's order for a face-to-face floor exam. The contention made in these petitions was that Eknath Shinde ought to be relieved of his Chief Minister duties as a result of his failure to follow the proper legal processes, and the petitioner ought to regain his position.

The Shinde faction's disrespect for the party whip, appointment of a new Deputy Speaker, demand for a floor test, and insistence on the majority of the Shinde faction were all deemed acts of desertion by the Thackeray group. Additionally, they said that the Governor had effectively accepted a "split" in the party by instituting the unconstitutional floor test.

The Thackeray side emphasized that elected members were no longer shielded from disqualification for defection by the exceptions to the defection legislation that applied to splits.

They also advocated for a reassessment of the Supreme Court's 2016 ruling in the Nabam Rebia case. According to this decision, if a Speaker had a pending notice of removal, he could not begin the process of disqualifying House members. The Thackeray side maintained that members who were in danger of defecting could easily stop the process by merely filing a notice for the Speaker's dismissal.

Respondent's Argument
The Shinde side maintained that once the Ministry withdrew its backing, the governor would have no choice but to request a floor test. They maintained that the Governor was right to call for a floor test because a sizable portion of MLAs had told him the Ministry no longer held a majority.

As far as the Shinde faction was concerned, there had been no discussions about a "split" inside the party since they insisted that they were the genuine Shiv Sena, as recognized by the Indian Election Commission.[3] They said that because Uddhav Thackeray never underwent the floor test and quit before it could be conducted, the Thackeray side's use of the "floor test" to challenge the legitimacy of the new administration was illegal. Internal party disputes are a natural aspect of democracy and the constitutional framework, according to the Shinde group, and therefore shouldn't be considered unlawful.

They further claimed that politics, not the courts, should have jurisdiction over the issue. They contended that the Election Commission should have the authority to ascertain the true political party, in accordance with the tenth schedule.

The Court made it clear that there were no unusual circumstances in this case, and that it normally cannot rule on disqualification petitions filed under the 10th Schedule. The Speaker has a fair amount of time to rule on disqualification petitions. No matter how many disqualification petitions are pending, an MLA is entitled to take part in House procedures. The resolution of disqualification petitions has no bearing on the legitimacy of House activities during the interregnum.

The Court made it clear that the whip and leader of the House are chosen by the Political Party, not the Legislature Party. The decision announced by the Speaker on July 3, 2022, was found to be illegal. After completing an investigation, the Speaker should acknowledge the whip and leader designated by the Shiv Sena Political Party.

The Election Commission of India (ECI) and the Speaker may decide on petitions under paragraph 15 of the Symbols order and the 10th Schedule, respectively, concurrently. In disqualification proceedings, the defense of a split is no longer applicable due to the removal of paragraph 3 from the 10th Schedule.

The Governor was deemed unjustified in asking Mr. Thackeray to prove his majority as there were no objective reasons to conclude Thackeray had lost the House's confidence. However, the status quo ante could not be restored as Thackeray resigned before facing the floor test. Therefore, the Governor was justified in inviting Eknath Shinde to form the Government at the BJP's behest, being the largest political party in the House. The batch of writ petitions was disposed of according to these conclusions.

Several possible weaknesses of the Indian legal system are highlighted by the legal proceedings in this particular case. It is still ambiguous on how the Speaker will decide disqualification pleas arising out of party constitutions for objective decision-making. A reasonable time period for making disqualification decisions is stressed, although explicit time constraints are missing, opening an opportunity for unreasonable delays or manipulations.

However, the efficacy of such a test fails because the court does not consider cases in which voluntary resignation blocks its practical conduct. However, the powers given to the governor are unpredictable thus leaving room for personal interpretation which may result in abuse of office. Moreover, the issue of how to handle internal party conflicts within one party has not been clearly defined leaving the role of the judiciary in this matter vague.

It is even worse in terms of the legal setting where there is no post-resignation provision for reviewing the decisions of an extinguished board in cases in which the status quo ante cannot be recovered. Corrections of these vices will build India's legal system that provides transparent and impartial rule of law resolution of political matters.

The case highlights the tenuous balance that exists in Indian politics between the legislative and executive branches. The Speaker's obligation to defer to party decisions when appointing the whip and house leader was underscored by the court. It made it clear that an MLA's ability to participate in house operations should not be impeded by disqualification petitions, and that an MLA's voluntary resignation is final. Party emblems and disqualification applications may be decided upon jointly by the Speaker and the Election Commission.

In order for the governor to conduct a floor test, there must be legitimate causes for the loss of trust. The court maintained democratic procedures and favored political resolutions over judicial meddling in intraparty disputes. The ruling highlights the court's adherence to the separation of powers and constitutional norms, upholding a balanced approach to political disagreements.

Written By: Sneha Swami - Bhagat Phool Singh Mahila Vishwavidylaya, Sonipat

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