SUBHASH DESAI versus PRINCIPAL SECRETARY, GOVERNOR OF MAHARASHTRA & ORS. on 11 May 2023

[2023] 8 S.C.R. 857

SUBHASH DESAI

v.

PRINCIPAL SECRETARY, GOVERNOR OF MAHARASHTRA &ORS.

(Writ Petition (C) No. 493 of 2022)

MAY 11, 2023

[DR. DHANANJAYA Y CHANDRACHUD, CJI, M. R. SHAH,KRISHNA MURARI, HIMA KOHLI ANDPAMIDIGHANTAM SRI NARASIMHA, JJ.]

Constitution of India: Art.191(2) – Maharashtra LegislativeAssembly Rules – r.95 – Coalition Government – Split in PoliticalParty – Losing Confidence of the House – Power of the Governorto call for Floor Test – After the State elections in 2019, a coalitiongovernment of Maha Vikas Agadi (MVA) [a post-poll alliance ofShiv Sena, Nationalist Congress Party (NCP), Indian NationalCongress (INC) and some independent MLAs] was formed inMaharashtra, with Mr. Thackeray of Shiv Sena as the Chief Minister– However, certain events transpired in mid-2022 which led to splitin Shiv Sena into two factions, one led by Mr. Thackeray and theother led by Mr. Shinde – 34 Shiv Sena MLAs (of Shinde Group)issued notice to Deputy Speaker stating that he no longer enjoyedtheir support and calling upon him to move a motion for his ownremoval – In the meanwhile, notices were issued by the DeputySpeaker on petition filed by the Chief Whip of petitioners (ThackerayGroup) under Tenth Schedule to the Constitution for disqualificationof MLAs of Shinde Group – Governor, pursuant to letter addressedby the Opposition Party, called upon the Thackeray Group to provemajority on the floor of the House – Thackeray resigned on thevery next day and thereafter a new Govt. was formed by a coalitionconsisting of BJP MLAs and rebel MLAs of Shiv Sena, with Mr.Shinde as the Chief Minister –Discretion and power of governor toinvite a person to form the Government – Extent of – Held: Thediscretion to call for a floor test is not an unfettered discretion butone that must be exercised with circumspection, in accordance withthe limits placed on it by law – The Governor had no objectivematerial on the basis of which he could doubt the confidence of the

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Aincumbent government – The resolution on which the Governorrelied did not contain any indication that the MLAs wished to exitfrom the MVA government – Communication expressing discontenton the part of some MLAs is not sufficient for the Governor to callfor a floor test – The Governor ought to apply his mind to thecommunication or other material before him to assess whether theBGovernment seemed to have lost the confidence of the House – The34 Shiv Sena MLAs did not express their desire to withdraw supportfrom the MVA Government in the resolution – The floor test cannotbe used as a medium to resolve internal party disputes or intra partydisputes – In the present case, the Governor did not have anyCobjective material before him to indicate that the incumbentgovernment had lost the confidence of the House and that he shouldcall for a floor test – Hence, exercise of discretion by the Governorin this case was not in accordance with law – The Governor wasnot justified in calling upon Mr. Thackeray to prove his majority onthe floor of the House because he did not have reasons based onDobjective material before him, to reach the conclusion that Mr.Thackeray had lost the confidence of the House – However, thestatus quo ante cannot be restored because Mr. Thackeray did notface the floor test and tendered his resignation – The Governorwas justified in inviting Mr. Shinde to form the government.

EConstitution of India – Art.153 – Position of Governor – InInternal Disputes of a Political Party – Split in Political Party –Held: The Governor is the titular head of the State Government –He is a constitutional functionary who derives his authority fromthe Constitution and he cannot exercise a power that is not conferredFon him by the Constitution or a law made under it – Neither theConstitution nor the laws enacted by Parliament provide for amechanism by which disputes amongst members of a particularpolitical party can be settled – They certainly do not empower theGovernor to enter the political arena and play a role (howeverminute) either in inter-party disputes or in intra-party disputes.G

Constitution of India: Tenth Schedule and Arts.32 & 226 –Power and Jurisdiction of Court – To adjudicate uponDisqualifications of Legislative Members – Held: Disqualificationof a person for being a member of the House has drasticconsequences for the member concerned and by extension, for theHcitizens of that constituency – Supreme Court should normally refrain from deciding disqualification petitions at the first instance, havingdue regard to constitutional intendment – The question ofdisqualification ought to be adjudicated by the constitutionalauthority concerned, namely the Speaker of the Legislative Assembly,by following the procedure prescribed – The Speaker must decidedisqualification petitions within a reasonable period.

Constitution of India: Art.181 – Reference to Larger Bench –Whether a notice for removal of a Speaker restricts them fromcontinuing with disqualification proceedings under Tenth Scheduleas held by this Court in Nabam Rebia – Held: Although the decisionin Nabam Rebia is not applicable to the factual scenario, however,Nabam Rebia is in conflict with the judgement in Kihoto Hollohan– Itappears that the majority in Nabam Rebia did not consider the effectand import of Article 181 of Constitution of India – Hence, thedecision in Nabam Rebia merits reference to a larger Bench becausea substantial question of law remains to be settled.

Constitution of India: Tenth Schedule – MaharashtraLegislative Members (Removal of Disqualification) Act, 1956 – s.23– Maharashtra Legislative Assembly (Disqualification on Groundof Defection) Rules 1986 – Rule 3(1)(a) & 6 – Appointment of Whip– Difference between Political Party and Legislature Party – Held:The political party and not the legislature party appoints the Whipand the Leader – The Tenth Schedule would become unworkable ifthe term ‘political party’ is read as the ‘legislature party’ – A cleardemarcation is made between political party and legislature partyfor the purpose of a merger under Paragraph 4 – To read the term‘political party’ as ‘legislature party’ would be contrary to the plainlanguage of the Tenth Schedule – Direction to vote in a particularmanner or to abstain from voting is issued by the political partyand not the legislature party – The Speaker must recognize the Whipand the Leader who are duly authorised by the political party afterconducting an enquiry in this regard.

Constitution of India – Arts. 189(2) and 190(3) – Decision ofSpeaker – Disqualification of Member – Validity of Proceedings ofthe Legislature – Held: An MLA has the right to participate inproceedings of the House regardless of the pendency of any petitionsfor their disqualification – Validity of proceedings of the House inthe interregnum is not “subject to” outcome of the disqualification A

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Apetitions – Decision of the Speaker does not relate back to the datewhen the MLA indulged in prohibitory conduct – The decision ofthe Speaker and the consequences of disqualification areprospective – If a member incurs disqualification under the TenthSchedule, it does not automatically result in their expulsion fromthe political party to which they belong.B

Constitution of India – Tenth Schedule – Election Symbols(Reservation and Allotment) Order, 1968 – Para 15 – Held: TheSpeaker and the ECI are empowered to concurrently adjudicate onthe petitions before them under the Tenth Schedule and underParagraph 15 of the Symbols Order respectively.C

Election Symbols (Reservation and Allotment) Order, 1968 –Para 15 – Held: While adjudicating petitions under Paragraph 15of the Symbols Order, the ECI may apply a test that is best suited tothe facts and circumstances of the case before it.

Constitution of India – Tenth Schedule – Para 2(1) and ParaD3 –Deletion of Paragraph 3 of the Tenth Schedule – Effect of –Held: Is that the defence of ‘split’ is no longer available to membersfacing disqualification proceedings – The Speaker would prima faciedetermine who the political party is for the purpose of adjudicatingdisqualification petitions under Paragraph 2(1) of the TenthESchedule, where two or more factions claim to be that political party– When there are two Whips appointed by two or more factions ofthe political party, the Speaker decides which of the two Whipsrepresents the political party Constitution of India – Tenth Schedule – Para 2 & 3 – ElectionFSymbols (Reservation and Allotment) Order, 1968 – Para 15 –Determination of, by Election Commission of India – Which groupconstitutes the political party – Allotment of Symbol – Held: Thetest of majority in the legislative and organisational wings of theparty is not the only or primary test – The ECI is free to fashion atest suited to the facts and complexities of the specific case before itG– In some cases, it is futile to assess which group enjoys a majorityin the legislature – Other tests include an evaluation of the majorityin the organisational wings of the political party, an analysis of theprovisions of the party constitution, or any other appropriate test –ECI to refrain from passing a subjective judgment on the approachesHpreferred by rival factions by applying the test of whether rival groups are adhering to the aims and objects of the party asincorporated in its constitution – Decision of ECI need not beconsistent with the decision of the Speaker – Decision of the ECIhas prospective effect – Disqualification proceedings before theSpeaker cannot be stayed in anticipation of the decision of theECI.

Constitution of India – Art.164(1B) – Appointment of ChiefMinister – Pending disqualification petitions – Held: Disqualificationis triggered only if disqualification incurred under the TenthSchedule – Mere institution of a disqualification petition does nottrigger some or all of the consequences which flow from thedisqualification itself.

Disposing of the Writ Petitions, the Court HELD: 1.1 The decision in Nabam Rebia merits referenceto a larger Bench because a substantial question of law remainsto be settled. To give quietus to the issue, the following question(and any allied issues which may arise) are referred to a largerBench: whether the issuance of a notice of intention to move aresolution for the removal of the Speaker restrains them fromadjudicating disqualification petitions under the Tenth Scheduleof the Constitution. [Para 70 & 71][907-F; 908-F-G]

Conclusion

1.2 This Court should normally refrain from decidingdisqualification petitions at the first instance, having due regardto constitutional intendment. The question of disqualificationought to be adjudicated by the constitutional authority concerned,namely the Speaker of the Legislative Assembly, by followingthe procedure prescribed. Disqualification of a person for beinga member of the House has drastic consequences for the memberconcerned and by extension, for the citizens of that constituency.Therefore, any question of disqualification ought to be decidedby following the procedure established by law. Absent exceptionalcircumstances, the Speaker is the appropriate authority toadjudicate petitions for disqualification under the Tenth Schedule.The Speaker is expected to act fairly, independently, andimpartially while adjudicating the disqualification petitions underthe Tenth Schedule. Ultimately, the decision of the Speaker onthe question of disqualification is subject to judicial review.Therefore, the Speaker of the Maharashtra Legislative Assembly AB

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Ais the appropriate constitutional authority to decide the questionof disqualification under the Tenth Schedule. [Para 80 & 85][912-G, H; 916-A-B]

1.3 The plain meaning of the provisions of the TenthSchedule, 1986 Rules, and Act of 1956 indicate that the WhipBand the Leader must be appointed by the political party. To holdthat it is the legislature party which appoints the Whip would beto sever the figurative umbilical cord which connects a memberof the House to the political party. It would mean that legislatorscould rely on the political party for the purpose of setting themup for election, that their campaign would be based on theCstrengths (and weaknesses) of the political party and its promisesand policies, that they could appeal to the voters on the basis oftheir affiliation with the party, but that they can later disconnectthemselves entirely from that very party and be able to functionas a group of MLAs which no longer owes even a hint of allegianceDto the political party. This is not the system of governance that isenvisaged by the Constitution. In fact, the Tenth Schedule guardsagainst precisely this outcome. That a Whip be appointed by thepolitical party is crucial for the sustenance of the Tenth Schedule.The entire structure of the Tenth Schedule which is built onpolitical parties would crumble if this requirement is not compliedEwith. It would render the provisions of the Tenth Schedule otioseand have wider ramifications for the democratic fabric of thiscountry. Thus, the Courts cannot be excluded by Article 212 frominquiring into the validity of the action of the Speaker recognizingthe Whip. [Para 111, 113 & 114][932-H; 933-D-G; 934-A]F1.4 The decision of the ECI under Symbol Order hasprospective effect. A declaration that one of the rival groups isthat political party takes effect prospectively from the date of thedecision. In the event that members of the faction which has beenawarded the symbol are disqualified from the House by the Speaker, the members of the group which continues to be in theGHouse will have to follow the procedure prescribed in the SymbolsOrder and in any other relevant law(s) for the allotment of a freshsymbol to their group. The disqualification proceedings beforethe Speaker cannot be stayed in anticipation of the decision ofthe ECI. In cases where a petition under Paragraph 15 of theHSymbols Order is filed after the (alleged) commission of

prohibitory conduct, the decision of the ECI cannot be reliedupon by the Speaker for adjudicating disqualification proceedings.If the disqualification petitions are adjudicated based on thedecision of the ECI in such cases, the decision of the ECI wouldhave retrospective effect. This would be contrary to law. [Para155 & 156][948-B-E]

1.5 The Governor had no objective material on the basis ofwhich he could doubt the confidence of the incumbentgovernment. The resolution on which the Governor relied didnot contain any indication that the MLAs wished to exit from theMVA government. The communication expressing discontent onthe part of some MLAs is not sufficient for the Governor to callfor a floor test. The Governor ought to apply his mind to thecommunication (or any other material) before him to assesswhether the Government seemed to have lost the confidence ofthe House. The term ‘opinion’ is used to mean satisfaction basedon objective criteria as to whether he possessed relevant material,and not to mean the subjective satisfaction of the Governor. Oncea government is democratically elected in accordance with law,there is a presumption that it enjoys the confidence of the House.There must exist some objective material to dislodge thispresumption. The Governor is the titular head of the StateGovernment. He is a constitutional functionary who derives hisauthority from the Constitution. This being the case, the Governormust be cognizant of the constitutional bounds of the power vestedin him. He cannot exercise a power that is not conferred on himby the Constitution or a law made under it. Neither theConstitution nor the laws enacted by Parliament provide for amechanism by which disputes amongst members of a particularpolitical party can be settled. They certainly do not empower theGovernor to enter the political arena and play a role (howeverminute) either in inter-party disputes or in intra-party disputes.It follows from this that the Governor cannot act upon an inferencethat he has drawn that a section of the Shiv Sena wished towithdraw their support to the Government on the floor of theHouse. [Para 186 & 189][959-C-E; 960-A-C]

2. In view of the discussion above, it is concluded as follows:(a) The correctness of the decision in Nabam Rebia is referred AB

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Ato a larger Bench of seven judges; (b) This Court cannot ordinarilyadjudicate petitions for disqualification under the Tenth Schedulein the first instance. There are no extraordinary circumstancesin the instant case that warrant the exercise of jurisdiction bythis Court to adjudicate disqualification petitions. The Speakermust decide disqualification petitions within a reasonable period;B(c) An MLA has the right to participate in the proceedings of theHouse regardless of the pendency of any petitions for theirdisqualification. The validity of the proceedings of the House inthe interregnum is not “subject to” the outcome of thedisqualification petitions; (d) The political party and not theClegislature party appoints the Whip and the Leader of the partyin the House. Further, the direction to vote in a particular manneror to abstain from voting is issued by the political party and notthe legislature party. The decision of the Speaker ascommunicated by the Deputy Secretary to the MaharashtraLegislative Assembly dated 3 July 2022 is contrary to law. TheDSpeaker shall recognize the Whip and the Leader who are dulyauthorised by the Shiv Sena political party with reference to theprovisions of the party constitution, after conducting an enquiryin this regard and in keeping with the principles discussed in thisjudgement; (e) The Speaker and the ECI are empowered toEconcurrently adjudicate on the petitions before them under theTenth Schedule and under Paragraph 15 of the Symbols Orderrespectively; (f) While adjudicating petitions under Paragraph 15of the Symbols Order, the ECI may apply a test that is best suitedto the facts and circumstances of the case before it; (g) The effectof the deletion of Paragraph 3 of the Tenth Schedule is that theFdefence of ‘split’ is no longer available to members facingdisqualification proceedings. The Speaker would prima faciedetermine who the political party is for the purpose of adjudicatingdisqualification petitions under Paragraph 2(1) of the TenthSchedule, where two or more factions claim to be that politicalGparty; (h) The Governor was not justified in calling upon Mr.Thackeray to prove his majority on the floor of the House becausehe did not have reasons based on objective material before him,to reach the conclusion that Mr. Thackeray had lost theconfidence of the House. However, the status quo ante cannot berestored because Mr. Thackeray did not face the floor test andH

tendered his resignation; and (i) The Governor was justified ininviting Mr. Shinde to form the government. [Para 206][966-F-H; 967-A-H; 968-A-B]

Nabam Rebia & Bamang Felix v. Deputy Speaker,Arunachal Pradesh Legislative Assembly (2016) 8 SCC1 : [2016] 6 SCR 1 – referred to larger bench.

Rajendra Singh Rana v. Swami Prasad Maurya (2007)4 SCC 270 : [2007] 2 SCR 591 and Speaker, HaryanaVidhan Sabha v. Kuldeep Bishnoi, (2015) 12 SCC 381: [2012] 10 SCR 672 – held inapplicable.

Kihoto Hollohan v. Zachillhu (1992) Supp (2) SCC 651: [1992] 1 SCR 686 and Shrimanth Balasaheb Patil v.Speaker, Karnataka Legislative Assembly (2020) 2 SCC595 : [2019] 16 SCR 886 – relied on.

Ramdas Athawale v. Union of India,(2010) 4 SCC 1:[2010] 3 SCR 1059 – explained.

Special Reference No. 1 of 1964 (Powers, Privilegesand Immunities of State Legislatures) AIR 1965 SC 745: [1965] 1 SCR 413; SR Bommai v. Union of India (1994)3 SCC 1 : [1994] 2 SCR 644;Mayawati v. MarkandeyaChand (1998) 7 SCC 517 : [1998] 2 Suppl. SCR 204;Sadiq Ali v. Election Commission of India (1972) 4 SCC664 : [1972] 2 SCR 318;Raja Ram Pal v. Hon’bleSpeaker, Lok Sabha (2006) 2 SCC 1 : [2006]1 SCR 562; Rameshwar Prasad v. Union of India(2007) 3 SCC 184 : [2007] 1 SCR 317; IndoreDevelopment Authority v. Manohar Lal (2020) 8 SCC129 : [2020] 3 SCR 1Pratap Gouda Patil v. State ofKarnataka (2019) 7 SCC 463;Shivraj Singh Chouhanv. Union of India (2020) 17 SCC 1 : [2020] 9 SCR 787;Kshetrimayum Biren Singh v. Hon’ble Speaker, ManipurLegislative Assembly (2022) 2 SCC 759;KeishamMeghachandra Singh v. Hon’ble Speaker ManipurLegislative Assembly (2020) SCC OnLine SC 55;Justice KS Puttaswamy v. Union of India (Aadhar 5J)(2019) 1 SCC 1 : [2018] 8 SCR 1; Rojer Mathew v.South Indian Bank Ltd.(2020) 6 SCC 1 : [2019]

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A16 SCR 1;State of UP v. Desh Raj, (2007) 1 SCC 257: [2006] 9 Suppl. SCR 352;Kuldip Nayar v. Union ofIndia (2006) 7 SCC 1 : [2006] 5 Suppl. SCR 1;DelhiAdmn. v. Gurdip Singh Uban, (2000) 7 SCC 296 : [2000]2 Suppl. SCR 496 and Taxi Owners United Transport v.State Transport Authority (Orissa), (1983) 4 SCC 34 –Breferred to.

Case Law Reference

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No.493of 2022.

H(Under Article 32 of The Constitution of India)

With

Writ Petition (C) Nos.469, 468, 470, 479 And 538 of 2022.

Tushar Mehta, SG, Kapil Sibal, Dr. Abhishek Manu Singhavi,Devadatt Kamat, Neeraj Kishan Kaul, Maninder Singh, SiddharthBhatnagar, Harish Salve, Mahesh Jethmalani, Ms. Malvika Trivedi, Sr.Advs., Amit Anand Tiwari, Rohit Sharma, Rajesh Inamdar, JavedurRahman, Nizam Pasha, Anish R. Shah, Harsh Pandey, Revanta Solanki,Amit Bhandari, Sunny Jain, Nishant Patil, Ms. Devyani Gupta, Ms.Tanvi Anand, Ms. Aprajita Jamwal, Dharmendra Mishra, SiddharthKaushik, Nikhil Purohit, Ashok Kumar, Siddharth Seem, L. NidhiramSharma, Aman Sharma, Ashima Chauhan Singh, Mudassir, AbhikalpPratap Singh, Abhay Anturkar, Prabhas Bajaj, Dhruv Sharma, Ms. IraMahajan, Raghav Agrawal, Toshiv Goyal, Ms. Manmeet Kaur Sareen,Navneet R, Ms. Shreya Saxena, Ms. Yamini Singh, Ms. Pritha Suri,Rangsaran Mohan, Ramchandran Madan, Ms. Vijetha Ravi, AjaySabharwal, Chirag Shah, Utsav Trivedi, Ravi Sharma, HimanshuSachdeva, Ms. Manini Roy, Ms. Shivani Bhushan, Nihar Thackeray,Ms. Ira Mahajan, Dhruv Sharma, Raghav Agarwal, Ms. Mugdha Pande,Ajay Awasthi, Prabhash Bajaj, Piyush Tiwari, Ms. Shrishti Kumar, KumarSumit, Ms. Chaitali Jugran, Ms. Kanjani Sharma, Ms. Pracheta Kar,Aditya Sidhra, Nadeem Afroz, Ms. Sujal Gupta, Wedo Khalo, AnjaniKumar Rai, Biswaksen Panda, M/s. Tas Law, Kanu Agrawal, MadhavSinhal, Arvind Kumar Sharma, Ms. Ajay Sabharwal, Pai Amit, Ms.Pankhuri Bhardwaj, Ms. Ranu Purohit, Ms. Bhavana Duhoon,Abhiyudaya Vats, Ms. Astha Prasad, Ms. Rukmini Bobde, Ms. TrishalaTrivedi, Ankit Ambasta, Chirag Gupta, Ajit Pravin Wagh, AadityaAniruddha Pande, Bharat Bagla, Sourav Singh, Ankit Yadav, Ms. PrakritiRastogi, Asim Sarode, Ms. Shriya Awale, Ms. Smita Singalkar, AshokKumar Gupta Ii, Pradeep Kumar Gupta, Kailash Prashad Pandey,Mahendra Kawchale, Vijay Pal, Pramod Kumar Singh, Kundal Lal,Anil Kumar, Umang Tripathi, Deepankar, Om Prakash, Ms. RekhaAgarwal, Karunesh Kumar Shukla, Amit Garg, Sadashiv, Dr. AP Singh,VP Singh, Ms. Richa Singh, Ms. Geeta Chauhan, Sharwan Kumar Goyal,Dr. Gunratan Sadavarte, Pankaj Kumar Singh, Pawan Kumar Shukla,S. C. Tripathi, Mukesh Verma, Kamal Kumar Pandey, Gaurav Belsare,Raj Singh Rana, T. R. B. Sivakumar, Shreyas Gacche, Rajsaheb Patil,Ms. Supriya Wankhede, Advs. for the appearing parties.

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[2023] 8 S.C.R.

AThe Judgment of the Court was delivered byDR. DHANANJAYA Y CHANDRACHUD, CJI

Table of Contents*

A.Factual Background .................................................. 4Bi.A change in the government of the State ofMaharashtra ..................................................... 4

ii.The election of the Speaker ........................12

iii.The proceedings before the ElectionCommission of India.....................................15CB.Overview of the reliefs sought in the presentproceedings ...............................................................16C.The reference............................................................20D.Submissions ...............................................................22D

i.Submissions on whether Nabam Rebia’s caseought to be referred to a larger Bench .....22

ii.Submissions on the merits of the case ......28E.Analysis .....................................................................48E

i.Reference of Nabam Rebia’s case to a largerBench ..............................................................48

ii.The power of this Court to decide disqualificationpetitions at the first instance ......................62

F

iii.Validity of the proceedings of the Housebetween the prohibitory conduct and thedecision in the disqualification petitions ...69

iv.The power to appoint the Whip and the

Leader of the Legislature Party .................75Ga.The bar under Article 212: justiciability of legislativeproceedings ...................................................... 76

b.The power to appoint the Whip and the Leader ofthe legislature party .......................................... 80H*Ed. Note : Pagination in the Table is as per the original judgement.

I.‘Political party’ and ‘legislature party’ areAdistinguishable concepts. .................................. 80II.Literal and purposive interpretation of the provisionsof the Tenth Schedule, the 1986 Rules, and the Actof 1956 ............................................................. 85

Bv.Deciding who the “real” Shiv Sena is........98a.The purpose of the Tenth Schedule and the effect ofdisqualification .................................................. 98

b.The purpose of the Symbols Order and the effect ofthe decision under Paragraph 15.................... 100c.The test(s) applicable to disputes under Paragraph15 of the Symbols Order ................................ 104

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d.The potential for complications in the presentcase ................................................................ 107e.Harmonising the Tenth Schedule with Paragraph 15of the Symbols Order ..................................... 109

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vi.The impact of the deletion of Paragraph 3of the Tenth Schedule ................................ 114

Ea.The defence of a ‘split’ is no longer available tomembers who face disqualificationproceedings .....................................................118b.The decision of the Speaker under Paragraph 2 ofthe Tenth Schedule..........................................119

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vii.The exercise of discretion by the Governor indirecting Mr. Thackeray to face a floortest.................................................................121a.The power of the Governor to call for a floortest.................................................................. 123Gb.The Governor’s exercise of the power to call fora floor test ...................................................... 127

viii.The exercise of discretion by the Governor ininviting Mr. Shinde to be the ChiefHMinister ........................................................133

[2023] 8 S.C.R.

Aa.Mr. Shinde’s appointment is not barred by Article164(1B) of the Constitution ............................ 134

b.The Governor did not exceed the scope of hisauthority ......................................................... 137

F.Conclusions ............................................................ 139B

1. The Writ Petitions instituted before this Court under Article 32of the Constitution arise from the political imbroglio in the StateLegislature of Maharashtra. A coalition consisting of the Shiv Sena, theNationalist Congress Party,[1] the Indian National Congress,[2] and certainindependent Members of the Legislative Assembly[3]formed theCgovernment in the State of Maharashtra with Mr. Uddhav Thackeray ofthe Shiv Sena as the Chief Minister. Certain events transpired in mid-2022 which led to the formation of a new government by a coalitionconsisting of a faction of the Shiv Sena (which claimed to the “real”Shiv Sena), the Bharatiya Janata Party,[4] and certain independent MLAs.DMr. Eknath Shinde of the Shiv Sena helmed the second government as its Chief Minister. The change in the composition of the government inthe State of Maharashtra was precipitated by the emergence of twofactions within the Shiv Sena. Various issues arising from these eventsfall to be determined by this Court in these proceedings. A detailednarration of the factual background follows.E

A. Factual Background

i. A change in the government of the State of Maharashtra

2. The Shiv Sena was founded in 1966 in Maharashtra. TheElection Commission of India[5] recognizesthe Shiv Sena as a state politicalFparty. The organizational election of the party for the term extendingfrom January 2018 to January 2023 was held on 23 January 2018 andMr. Uddhav Thackeray was elected as the Party President or the ‘PakshPramukh.’

3. The elections to the 14[th] Legislative Assembly of MaharashtraGwere held in October 2019. Of a total of two hundred and eighty-eightseats, the BJP returned candidates in one hundred and six seats, the 1"NCP”

2"INC”

3"MLA”

4"BJP”H5"ECI”

Shiv Sena in fifty-six seats, the NCP in fifty-three seats, and the INC inforty-four seats. Independent candidates were returned in thirteenconstituencies and the remaining constituencies returned candidates fromvarious other parties. In November 2019, the Shiv Sena, the NCP, andthe INC formed a post-poll alliance which came to be known as theMaha Vikas Aghadi.[6] The MVA successfully staked a claim to form thegovernment in Maharashtra and Mr. Uddhav Thackeray was sworn inas the Chief Minister. On 25 November 2019, pursuant to a meetingchaired by Mr. Uddhav Thackeray, all fifty-six MLAs of the Shiv Senaissued a communication to the Speaker of the Maharashtra LegislativeAssembly intimating him that Mr. Eknath Shinde was appointed as theGroup Leader of the Shiv Sena Legislature Party[7] and that Mr. SunilPrabhu was appointed as the Chief Whip of the SSLP.

4. The MVA continued to govern the State of Maharashtra untilJune 2022, when news reports revealed that some MLAs who belongedto the Shiv Sena were meeting with leaders of the BJP. At this time, theoffice of the Speaker lay vacant, and the functions of the Speaker werebeing discharged by the Deputy Speaker, Mr. Narhari Zirwal.

5. The events which followed indicate that the SSLP fracturedinto two factions: one led by the then Chief Minister, Mr. UddhavThackeray, and the other led by the Group Leader of the SSLP, Mr.Eknath Shinde. Each faction claimed to represent the “real” politicalparty and passed various resolutions pertaining to the affairs of theSSLP.For ease of reference, we refer to the faction led by Mr. Thackerayas the petitioners and the faction led by Mr. Shinde as the respondents.

6. On 21 June 2022, the Chief Whip of the Shiv Sena, Mr. SunilPrabhu, issued a whip directing all MLAs of the Shiv Sena to attend ameeting at Mr. Thackeray’s residence on the same day. Many MLAs,including the Group Leader Mr. Eknath Shinde, did not attend this meeting.The MLAs who were in attendance passed a resolution removing Mr.Eknath Shinde from the position of the Group Leader of the SSLP andappointing one Mr. Ajay Choudhari in his place. The decisions taken byway of this resolution were communicated to the Deputy Speaker onthe same day, i.e., 21 June 2022. Also on the same day, the DeputySpeaker communicated his acceptance of the change in the GroupLeader of the SSLP.

6"MVA”

7 “SSLP”

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6"MVA”

7 “SSLP”

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A7. Concurrently, thirty-four MLAs of the Shiv Sena (i.e., therespondents) organized a separate meeting and passed a resolutionreaffirming that Mr. Eknath Shinde “continues to be” the Group Leaderof the SSLP. It was further resolved that the appointment of Mr. SunilPrabhu as the Chief Whip was cancelled, and that Mr. Bharat Gogawalewas appointed in his place. The resolution is dated 21 June 2022 andBwas purportedly passed in Guwahati, Assam. The petitioners claim thatit was received by the Deputy Speaker only on 22 June 2022 while therespondents claim that it was sent on 21 June 2022.8. Mr. Eknath Shindewrote to the Deputy Speaker communicating the details of the resolutionpassed by the thirty-four MLAs of the Shiv Sena, by which hisCappointment as the Group Leader of the SSLP was reaffirmed. Herequested the Deputy Speaker not to recognize Mr. Ajay Choudhari asthe Group Leader in view of the resolution reaffirming his appointment.Once again, the petitioners claim that the Deputy Speaker received thiscommunication on 22 June 2022 and the respondents aver that it wassent on 21 June 2022.D

9. The same thirty-four MLAs also issued a notice to Mr. NarhariZirwal, the Deputy Speaker, stating that he no longer enjoyed their supportand calling upon him to move a motion for his removal from office. Thenotice was issued under Article 179(c) of the Constitution read withRule 11 of the Maharashtra Legislative Assembly Rules 2019. TheEpetitioners claim that this notice, too, was received by the Deputy Speakeron 22 June 2022. The respondents maintain that it was sent on thepreceding day, 21 June 2022.

10. On 22 June 2022, Mr. Sunil Prabhu issued individualcommunications to all MLAs of the Shiv Sena, calling upon them toFattend a meeting of the SSLP scheduled to take place that evening atMr. Thackeray’s residence. The communication stated as follows:

“…failure to participate in the meeting without providing validand adequate reasons in writing, communicated in advance to theundersigned, will result in consequential action against you underthe relevant provisions of the Constitution of India.”G

The meeting on 22 June 2022, too, was not attended by manyMLAs of the Shiv Sena including Mr. Eknath Shinde.

11. Mr. Eknath Shinde addressed a letter to Mr. Sunil Prabhu on22 June 2022 accusing him of misusing the letterhead of the SSLP. Theletter stated that:H

a.A meeting of forty-five MLAs of the Shiv Sena was heldAunder the chairmanship of Mr. Eknath Shinde; b.Mr. Sunil Prabhu was removed from the position of ChiefWhip of the Shiv Sena;

c.Mr. Bharat Gogawale was appointed as the Chief Whip ofthe Shiv Sena in place of Mr. Sunil Prabhu; and B

d.Mr. Sunil Prabhu did not have the authority to sign thecommunication dated 22 June 2022 (issued by him to allMLAs of the Shiv Sena). It was therefore not binding uponMr. Eknath Shinde to attend the meeting scheduled to takeplace at Mr. Thackeray’s residence.

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12. On 23 June 2022, Mr. Sunil Prabhu filed petitions underParagraph 2(1)(a) of the Tenth Schedule to the Constitution for thedisqualification of Mr. Eknath Shinde and fifteen other MLAs of theShiv Sena. The Deputy Speaker issued notices in these disqualificationpetitions on 25 June 2022. The relevant portion of the order issuing noticeis reproduced below:

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“You are instructed to submit written submissions as per theprocedure laid in the Members of Maharashtra LegislativeAssembly (Disqualification on Ground of Defection) Rules 1986by Monday, 27th June 2022 by 5.30 pm to Deputy Speaker.”

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13. On 27 June 2022, the jurisdiction of this Court under Article32 was invoked by the respondents challenging the notice issued in thedisqualification petitions. This Court passed an interim order on the sameday in the following terms, extending the time to respond to thedisqualification petitions from 27 June 2022 to 12 July 2022:

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“Meanwhile as an interim measure, the time granted by the DeputySpeaker of the Assembly to the petitioners or other similarly placedMembers of the Legislative Assembly to submit their writtensubmissions upto today by 5.30P.M., is extended till 12.07.2022.”

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14. Separately, Mr. Sunil Prabhu filed petitions for thedisqualification of two independent MLAs as well as one MLA of thePrahar Janshakti Party on 25 June 2022 and against twenty-two MLAsof the Shiv Sena on 27 June 2022.

15. On 28 June 2022, the then Leader of Opposition Mr. DevendraFadnavis addressed a letter to the Governor inter alia conveying that H

Ahe believed that the then Chief Minister, Mr. Thackeray, did not enjoy amajority on the floor of the House. He called upon the Governor todirect Mr. Thackeray to prove his majority on the floor of the House.Seven MLAs who were elected as independent candidates penned asimilar letter to the Governor on the same day. They too requested the Governor to direct Mr. Thackeray to prove his majority on the floor ofBthe House.

16. The Governor issued a letter to the then Chief Minister, Mr.Uddhav Thackeray on 28 June 2022, calling upon him to face a floor teston 30 June 2022. The communication specified the manner in which thetrust vote was to be conducted in the following terms:C

“(i) A Special session of the Maharashtra Vidhan Sabha besummoned on 30.06.2022 at 11:00 AM with the only agenda of atrust vote against the Government.

(ii) The business of the house shall be conducted in such a wayDthat the speeches, if any, are concluded in a short period of timeand the trust vote is concluded on 30.06.2022 by 5:00 PM.

(iii) The voting will be conducted by asking Members to rise intheir seats for the purpose of counting votes as contemplated underthe Maharashtra Legislative Assembly Rules.

E(iv) The Proceedings have to be live telecast, and appropriatearrangements are to be made to ensure the same.

(v) The entire proceedings of the trust vote shall be videographedby the Vidhan Sabha Secretariat through an independent agencyand shall be submitted to me.

F(vi) The aforesaid proceedings shall be started on 30.06.2022 at11:00 AM and no case shall be same be adjourned, delayed orsuspended.

(vii) Adequate arrangements shall be made for the security of theMembers both outside and inside the Vidhan Bhavan to ensureGsmooth conducting of the floor test.”

The Governor also issued a communication dated 28 June 2022 tothe Secretary, Maharashtra Legislative Assembly calling upon him tomake necessary arrangements for the session of the MaharashtraLegislative Assembly at which the floor test was to be conducted.

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17. On the very next day (29 June 2022), Mr. Sunil Prabhu instituteda Writ Petition before this Court for setting aside the communicationsdated 28 June 2022 issued by the Governor to the Chief Minister as alsoto the Secretary, Maharashtra Legislative Assembly, on the ground thatdisqualification petitions against forty-two MLAs of the Shiv Sena werepending consideration before the Deputy Speaker. This Court declinedto stay the trust vote. The relevant portion of the order dated 29 June2022 passed by this Court is reproduced below:

“8 …

(i) We do not find any ground to stay convening of the SpecialSession of the Maharashtra Vidhan Sabha on 30-6-2022, i.e,tomorrow at 11.00 a.m. with the only agenda of a trust vote;

(ii) The proceedings of the trust vote to be convened on 30-6-2022shall be subject to the final outcome of the instant Writ Petition aswell the Writ Petitions referred to above;

(iii) the Special Session of the Maharashtra Vidha Sabha shall beconducted in accordance with the directions as contained in thecommunication dated 28-6-2022 of the Governor of Maharashtra.”

Mr. Thackeray, resigned on the same day.

18. On 30 June 2022, Mr. Devendra Fadnavis wrote a letter tothe Governor stating that one hundred and six MLAs from BJP andeight independent and other MLAs were extending support to Mr. EknathShinde to form the government. On the same day, Mr. Shinde submitteda letter to the Governor along with a resolution by thirty-nine MLAsfrom the SSLP unanimously resolving to authorise Mr. Shinde to initiateproceedings to form the government in the State. In said letter, Mr. Shindeclaimed the support of one hundred and six BJP MLAs and seventeenindependent and other MLAs. Moreover, Mr. Shinde claimed that hehad the support of the majority and requested the Governor to invite himto take oath as the Chief Minister. On 30 June 2022, sixteen MLAs whowere independent candidates or belonged to parties other than the ShivSena, BJP, INC, and NCP wrote to the Governor expressing their supportfor a government led by Mr. Shinde. On the same day, the Governorissued a communication to Mr. Shinde inviting him to take oath as theChief Minister and requesting him to prove that he enjoyed the confidenceof the Assembly within a period of seven days of taking over as theChief Minister.

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A19. The Governor administered the oath of office to Mr. Shindeand Mr. Fadnavis on 30 June 2022 and they assumed the roles of ChiefMinister and Deputy Chief Minister of Maharashtra, respectively. Onthe same day, Mr. Thackeray issued a letter to Mr. Shinde stating thathe had been removed from the post of ‘Shiv Sena Leader’ in theorganisational structure of the party. Mr. Thackeray similarly removedBother MLAs of the Shiv Sena from their roles as office-bearers of theparty.

ii. The election of the Speaker

20. Later that week, the Principal Secretary of the MaharashtraCLegislative Assembly circulated the working order for the session whichwas scheduled to take place on 3 July 2022. The fifth item on the agendareflected that the election for the post of the Speaker was to be conducted.An MLA belonging to the BJP nominated Mr. Rahul Narwekar of theBJP for this position while an MLA of the Shiv Sena (ostensibly fromMr.Thackeray’s faction) nominated Mr. Rajan Salvi of the Shiv Sena.DFurther, a motion of confidence for the Council of Ministers headed bythe Chief Minister, Mr. Shinde, was scheduled to be moved in a sessionof the Assembly on 4 July 2022.

21. In view of the agenda for the sessions of the Assembly, Mr.Sunil Prabhu issued two whips on 2 July 2022. The first whip directed allEMLAs of the Shiv Sena to attend the session of the MaharashtraLegislative Assembly on 4 July 2022 and vote against the motion ofconfidence for the Council of Ministers headed by the Chief Minister,Mr. Shinde. The second whip directed all MLAs of the Shiv Sena toattend the session of the Maharashtra Legislative Assembly on 3 JulyF2022 and vote for the Shiv Sena’s candidate, Mr. Rajan Salvi, in theelection for the post of the Speaker.

22. The election for the post of the Speaker was conducted asscheduled and Mr. Rahul Narwekar of the BJP emerged victorious, witha total of one hundred and sixty-four votes cast in his favour. Thirty-nineMLAs of the Shiv Sena (led by Mr. Shinde) voted in favour of Mr.GRahul Narwekar’s candidature. Consequently, Mr. Sunil Prabhu institutedfresh disqualification proceedings against these MLAs under Paragraph2(1)(b) of the Tenth Schedule to the Constitution for violating the whipissued by him.

23. After assuming office as the Speaker of the House, Mr. RahulNarwekar cancelled the approval granted to Mr. Ajay Choudhari as theLeader of the SSLP and approved the appointment of Mr. Eknath Shindein his place. Further, he recognized Mr. Bharat Gogawale as the ChiefWhip of the Shiv Sena in place of Mr. Sunil Prabhu. These decisions ofthe Speaker were recorded in a communication dated 3 July 2022 issuedby the Deputy Secretary of the Maharashtra Legislative Assembly, therelevant portion of which is extracted below:

“…after deliberation … Hon’ble Speaker, Maharashtra LegislativeAssembly has cancelled the approval granted to Shri AjayChoudhari as leader, Shiv Sena Legislative Party and approves &recognizes the nomination of Shri Eknath Shinde as Leader, ShivSena Legislative Party as per the letter dated 31st October 2019.Similarly, the proposal to nominate Shri Sunil Prabhu as ChiefWhip of Shiv Sena Legislative Party is to be cancelled and torecognize the nomination of Shri Bharat Gogawale as Chief Whipof ShivSena Legislative Party has been approved and recorded in the registry.”

Mr. Bharat Gogawale issued a whip on 3 July 2022 directing allMLAs of the Shiv Sena to attend the session of the MaharashtraLegislative Assembly on 4 July 2022 and vote in favour of the motion ofconfidence for the Council of Ministers headed by the Chief Minister,Mr. Shinde.

24. To summarize – in June 2022, Mr. Thackeray was the ChiefMinister, Mr. Shinde was the Leader of the SSLP, and Mr. Sunil Prabhuwas the Chief Whip of the Shiv Sena.However, by 3 July 2022, Mr.Thackeray had resigned from the position of Chief Minister and Mr.Shinde was the Chief Minister, Mr. Ajay Choudhari was recognized asthe Leader of the SSLP and subsequently replaced by Mr. Shinde, andMr. Bharat Gogawale was recognized as the Chief Whip in place of Mr.Sunil Prabhu. Each faction continued to claim that the appointmentsmade by them and communicated to the Speaker or the Deputy Speaker,as the case may be, were legal and valid, and that the appointmentsmade by the opposite faction were illegal and invalid. Time and again,the question of who the “real” Shiv Sena was, arose.

25. Soon after the election of the Speaker, some MLAs of theShiv Sena who belonged to Mr. Thackeray’s faction issued (on two ABC

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Adifferent occasions) notices of intention to move a resolution for theremoval of Mr. Rahul Narwekar from the office of the Speaker underArticle 179(c) of the Constitution read with Rule 11 of the MaharashtraLegislative Assembly Rules 2019.

26. On 4 July 2022, a motion of confidence was moved on theBfloor of the Maharashtra Legislative Assembly. The House expressedits confidence in Mr. Shinde. As a consequence, Mr. Sunil Prabhu filedfresh petitions for the disqualification of thirty-nine MLAs (led by Mr.Shinde) under Paragraph 2(1)(b) of the Tenth Schedule for violating thewhip issued by him on 2 July 2022. Similarly, Mr. Bharat Gogawale filedpetitions for the disqualification of fourteen MLAs of the Shiv Sena (ledCby Mr. Thackeray) under Paragraphs 2(1)(a) and 2(1)(b) of the TenthSchedule for violating the whip issued by him on 3 July 2022. On 8 July2022, Mr. Rahul Narwekar issued notices in the latter set ofdisqualification petitions.

iii. The proceedings before the Election Commission ofDIndia

iii. The proceedings before the Election Commission ofDIndia

27. On 19 July 2022, Mr. Eknath Shinde filed a petition before theECI under Paragraph 15 of the Election Symbols (Reservation andAllotment) Order 1968[8] for the allotment of the symbol of the Shiv Sena,i.e., the ‘bow and arrow,’ to the faction led by him. The ECI directed theEgroups led by Mr. Shinde and Mr. Thackeray to furnish their writtensubmissions and any documents in favour of their claims.

28. Thereafter, the petitioners filed two interlocutory applicationsfor the impleadment of the ECI in WP(C) 493 of 2022 and for a stay onthe proceedings before the ECI. The first of these (for impleadment ofFthe ECI) was allowed by this Court by its order dated 27 September2022. The interlocutory application seeking a stay was dismissed by thesame order.

29. On 17 October 2022, the ECI passed an order granting the‘bow and arrow’ symbol to the group led by Mr. Shinde.

GB. Overview of the reliefs sought in the present proceedings

30. These proceedings arise from six Writ Petitions filed bymembers of the groups led by both Mr. Thackeray as well as Mr. Shinde.The reliefs sought in each of these petitions are captured in the tablebelow, for ease of reference:

H8"Symbols Order”

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C. The reference

31. The Writ Petitions described in the previous segment of thisjudgment were listed before a three-Judge Bench of this Court on 4H

August 2022, when Mr. Kapil Sibal and Dr. Abhishek Manu Singhvi,learned senior counsel appearing on behalf of the petitioners and Mr.Harish Salve, learned senior counsel appearing on behalf of therespondents advanced arguments on whether the issues raised in thesepetitions required reference to a five-judge Bench of this Court.

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32. By its order dated 23 August 2022, this Court accepted thesubmission that this batch of Writ Petitions ought to be referred to afive-Judge Bench under Article 145(3) of the Constitution as substantialquestions of law remained to be decided.It accordingly referred thematter. The following questions were framed for consideration:

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a.Whether a notice for removal of a Speaker restricts themfrom continuing with disqualification proceedings underTenth Schedule of the Constitution, as held by this Court inNabam Rebia & Bamang Felix v. Deputy Speaker,Arunachal Pradesh Legislative Assembly;[9]

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b.Whether a petition under Article 226 or Article 32 lies,inviting a decision on a disqualification petition by the HighDCourts or the Supreme Court, as the case may be;

c.Can a court hold that a member is “deemed” to bedisqualified, by virtue of his/her actions, absent a decisionby the Speaker; E

d.What is the status of proceedings in the House during thependency of disqualification petitions against the members; e.If the decision of a Speaker that a member has incurreddisqualification under the Tenth Schedule relates back tothe date of the action complained of, then what is the statusof proceedings that took place during the pendency of adisqualification petition; F

f.What is the impact of the removal of Paragraph 3 of theTenth Schedule; g.What is the scope of the power of the Speaker to determinethe Whip and the leader of the house legislature party? WhatGis the interplay of the same with respect to the provisionsof the Tenth Schedule; h.Are intra-party decisions amenable to judicial review? Whatis the scope of the same;i. What is the extent of discretion 9 (2016) 8 SCC 1

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and power of the Governor to invite a person to form theGovernment, and whether the same is amenable to judicialreview; and j.What is the scope of the powers of the Election Commissionof India with respect to the determination of a split within aBparty.

D. Submissions

i. Submissions on whether Nabam Rebia’s case ought to bereferred to a larger Bench

33. Learned senior counsel appearing on behalf of the partiesCaddressed this Court on the first of the issues specified in the precedingparagraph, that is, on whether a notice of intention to move a resolutionfor the removal of a Speaker restricts them from continuing withdisqualification proceedings under the Tenth Schedule of the Constitution,as held by this Court in Nabam Rebia (supra).

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34. Mr. Kapil Sibal, Dr. Abhishek Manu Singhvi and Mr. DevadattKamat, learned senior counsel advanced submissions on behalf of thepetitioners. Their submissions were opposed by Mr. Harish Salve, Mr.Neeraj Kishan Kaul, Mr. Mahesh Jethmalani, Mr. Maninder Singh andMr. Siddharth Bhatnagar, learned senior counsel appearing for theErespondents. Mr. Tushar Mehta, learned Solicitor General, appeared onbehalf of the Governor of the State of Maharashtra.

35. In Nabam Rebia (supra), a Constitution Bench of this Courtinter alia ruled that it is impermissible for a Speaker to adjudicate upondisqualification petitions under the Tenth Schedule after a notice ofFintention to move a resolution for their removal from the office of theSpeaker is issued. The petitioners have urged that this aspect of thedecision in Nabam Rebia (supra) ought to be referred to a Bench ofseven Judges of this Court because:

a.In Kihoto Hollohan v. Zachillhu,[10] a Constitution BenchGof this Court held that the Court cannot interfere indisqualification proceedings under Paragraph 6 of the TenthSchedule at an interlocutory stage save in exceptionalcircumstances. In terms of the decision in Nabam Rebia(supra), the proceedings under the Tenth Schedule would H10 (1992) Supp (2) SCC 651

be interdicted upon the issuance of a notice of intention tomove a resolution for the removal of the Speaker. Thisamounts to interference in disqualification proceedings atthe interlocutory stage. The decisions in Kihoto Hollohan(supra) and Nabam Rebia (supra), therefore, conflict withone another; A

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b.The decision in Nabam Rebia (supra) is prone to be misusedby defecting MLAs, whose consequent disqualificationunder the Tenth Schedule can be avoided by disabling theSpeaker from proceeding with disqualification proceedingsby issuing a notice of intention to move a resolution fortheir removal under Article 179 of the Constitution. TheSpeaker is left without a remedy in case of their improperremoval, while a disqualified member may access theremedy of judicial review if they have been unlawfullydisqualified; C

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c.By holding that the Speaker is disabled from proceedingwith disqualification proceedings under the Tenth Schedulewhen a notice of intention to move a resolution fortheirremoval is issued, Nabam Rebia (supra) has the effect of:

i.Effacing the distinction between the role of the Speaker asa Tribunal under the Tenth Schedule and the role of theESpeaker as an Officer of the State Legislature;

ii.Disrupting the continuity in the functioning of the Tribunalunder Paragraph 6 of the Tenth Schedule; and

iii.Creating a constitutional hiatus in the operation of the TenthSchedule.

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d.The decision in Nabam Rebia (supra) is based on theinterpretation of the phrase “all the then Members of theAssembly” in Article 179(c) of the Constitution to meanthat the composition and strength of the House cannot beGaltered once a notice of intention to move a resolution forthe removal of the Speaker is issued. This interpretation iscontrary to:

i.The plain language of Article 179;

ii.The import of Article 181; and

Aiii.The deliberations in the Constituent Assembly Debates.

e.In terms of the decision of this Court in Rajendra SinghRana v. Swami Prasad Maurya,[11 ]the disqualification ofan MLA relates back to the date on which they engaged inthe conduct proscribed under the Tenth Schedule. TheBscheme of the Constitution does not envisage the possibilityof disqualified MLAs issuing a notice of intention to movea resolution for the removal of the Speaker after the dateon which they engaged in the proscribed conduct.

36. The respondents opposed the submissions urged on behalf ofCthe petitioners. They submitted that the decision in Nabam Rebia (supra)is not required to be referred to a Bench of seven Judges of this Courtfor the following reasons:

a.The decision in Nabam Rebia (supra) is based on ethicaland constitutional considerations. If an MLA is unjustlyDdisqualified by the Speaker and their disqualification is setaside by the courts, they would have been deprived of theopportunity to vote on the resolution for the removal of theSpeaker as well as the opportunity to participate in otherproceedings of the House. On the other hand, if the Speakeris unjustly removed from office, they do not loseEmembership of the House and consequently retain the rightto participate in the proceedings of the House. They mayalso be re-elected as the Speaker; b.The Speaker may act as a Tribunal under the Tenth Scheduleonly when they enjoy the confidence of the House;F

c.Article 181(1) provides that the Speaker cannot preside inthe Legislative Assembly when a motion for their removalis pending; d.The decision in Kihoto Hollohan (supra) is an exceptionand not a general rule. Disabling the Speaker from decidingGdisqualification petitions upon the issuance of a notice ofintention to move a resolution for their removal does notconflict with the ruling in Kihoto Hollohan (supra) becausethe disablement of the Speaker does not amount tointerference at the interlocutory stage; andH11 (2007) 4 SCC 270

e.In Nabam Rebia (supra), the Constitution Bench addressedthe issue pertaining to the role of the Speaker whendisqualification proceedings are initiated against MLAs. Theissue has ceased to be a “substantial question of law” andcannot be referred to a larger bench under Article 145(3)of the Constitution.

37. Mr. Tushar Mehta, the learned Solicitor General, appearedfor the Governor of the State of Maharashtra and urged that NabamRebia (supra) did not warrant a reference to a larger Bench for thefollowing reasons:

a.It is not the case of the petitioners that Nabam Rebia(supra) is per incuriam. It considers all the relevant aspects,precedent, and constitutional provisions; b.Nabam Rebia (supra) considers the possibility of the misuseof the temporary disablement of the Speaker;

c.The assertion that Nabam Rebia (supra) protects a memberof a House from disqualification is incorrect becausemembers can always be subjected to disqualificationproceedings by a Speaker whose majority in the House isnot under a cloud of suspicion; d.Although the Speaker performs different functions as a“Tribunal” under the Tenth Schedule and as an “officer ofthe State Legislature” under the rules of the House, theirauthority to perform both functions is derived from the samesource which is the confidence of the majority of the House;and e.Nabam Rebia (supra) does not conflict with KihotoHollohan (supra) because the latter permits quia timetactions where there are “grave, imminent and irreparableconsequences.”

38. By its order dated 17 February 2023, this Court directed thatthe issue of whether a reference of the decision in Nabam Rebia (supra)to a larger Bench was warranted, would be determined together withthe merits of the case. The order reads thus:

“8. The issue of whether a reference to a Bench of seven Judgesshould be made cannot be considered in the abstract; isolated or A

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Adivorced from the facts of the case. Whether, the above principlewhich has been formulated in Nabam Rebia (supra) has an impactupon the factual position in the present case, needs deliberation.

9. In the above backdrop, the issue whether a reference of thedecision in Nabam Rebia (supra) to a larger Bench is warranted,Bwould be determined together with the merits of the case.”

39. Learned counsel appearing for the parties were then heard onthe merits of the case.

ii. Submissions on the merits of the case

C40. Mr. Kapil Sibal, learned senior counsel appearing on behalf ofthe petitioners made the following submissions:

a.A constitutional court, by virtue of its power under Articles32 and 226 of the Constitution can decide whether an MLAis disqualified under the provisions of the Tenth Schedule.DThis Court has recognised this exceptional power inRajendra Singh Rana (supra). The following exceptionalcircumstances indicate that this Court must decide thedisqualification petitions in these proceedings:

i.The constitutionality of events which succeeded thefiling of the disqualification petitions, namely, theEdirection of the Governor on 28 June 2022 to thethen Chief Minister Mr. Uddhav Thackeray to faceafloor test, the swearing in of Mr. Eknath Shinde asthe Chief Minister on 30 June 2022, the appointmentof the Speaker on 3 July 2022, the floor test held onF4 July 2022, and the petition filed by a faction led byMr. Eknath Shinde under Paragraph 15 of the SymbolsOrder, have been challenged before this court;

ii.The Speaker was appointed with the support of thefaction of the Shiv Sena legislators led by Mr. EknathGShinde. The Speaker has conducted himself in abiased and mala fide manner. In a communicationdated 3 July 2022, the Speaker de-recognised Mr.Ajay Choudhari and Mr. Sunil Prabhu as the Leaderof the SSLP and the Chief Whip of the Shiv Senarespectively, and instead recognised Mr. Eknath H

Shinde and Mr. Bharat Gogawale respectively. Thedecision of the Speaker in the disqualificationproceedings would depend on who was recognizedas the Chief Whip which is also under challenge inthe instant batch of proceedings; A

iii.A Constitutional Court while deciding disqualificationpetitions must decide if a per se case ofdisqualification is made out against the MLAs; B

iv.In the facts of the present case, a per se case ofdisqualification is made out under Paragraph 2(1)(a)of the Tenth Schedule against the faction of legislatorsled by Mr. Eknath Shinde because:

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I.They deliberately did not attend the SSLPmeetings held on 21 June 2022 and 22 June2022;

II.On 22 June 2022, they passed illegal resolutionsappointing Mr. Shinde as the Leader of theSSLP, and Mr. Gogawale as the Chief Whip;and D

III.The faction led by Mr. Shinde met theGovernor along with Mr. Devendra Fadnavis,the then Leader of Opposition. The allianceEof legislators of Mr. Shinde’s faction with theBJP was against the wishes of the Shiv Senapolitical party.

v.In the facts of the present case, a per se case ofdisqualification is made out under Paragraph 2(1)(b)Fof the Tenth Schedule against the faction of legislatorsled by Mr. Eknath Shinde. On 2 July 2022, Mr. SunilPrabhu issued a whip for the election of the Speaker.The faction of legislators led by Mr. Shinde violatedthe whip and voted in favour of Mr. Rahul Narwekar,who was the candidate nominated by the BJP.G

vi.Disqualification under the Tenth Schedule relatesback to the date on which the MLA engaged in theact incurring disqualification. Thus, the outcome ofthe proceedings on the floor of the House which tookplace during the pendency of the disqualification H

Aproceedings would depend on the decision of theSpeaker on the disqualification petitions. In the samevein, the outcome of the trust vote would depend onthe decision in the disqualification proceedings.Additionally, this Court by its order dated 29 June2022 while dismissing the writ petition filed by theBpetitioners seeking a stay on the direction of theGovernor to hold a trust vote, observed that theproceedings of the trust vote shall be subject to thefinal outcome of the writ petition;

vii.The faction of legislators led by Mr. Shinde haveCasserted that they are the “real” Shiv Sena. Theyhave also initiated proceedings under Paragraph 15of the Symbols Order. The defence of therespondents in effect is that of a split. The defenceof split having been deleted from the Tenth ScheduleDby the Constitution(Ninety-first Amendment) Act2003 cannot be used by the respondents as a defencefor actions that incur disqualification; b.The purported resolution dated 21 June 2022 passed by therespondents appointing Mr. Gogawale as the Chief Whip,Eand the communication of the Speaker dated 3 July 2022recognising Mr. Gogawale as the Chief Whip are illegaland must be set aside. The Chief Whip and the Leader ofthe legislature party must be appointed by the political partyand not the legislature party because:

Fi.Paragraph 2(1)(b) of the Tenth Schedule stipulatesthat the whip must be issued by the political party(and not the legislature party) or by an authorityauthorised by the political party. Thus, the whip cannotbe issued or altered by a majority of the legislatureparty. Paragraphs 1(b) and 1(c) differentiate betweenGa legislature party and a political party for the purposesof the Tenth Schedule. This reading of the TenthSchedule has been affirmed by Srinivasan, J. in hisseparate opinion in Mayawati v. MarkandeyaChand;[12]

H12 (1998) 7 SCC 517

SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF889MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]ii.A majority faction of the legislature party cannot beAconstrued as the political party for the purposes ofthe Tenth Schedule;

iii.The explanation to Section 23 of the MaharashtraLegislature Members (Removal of Disqualification)Act 1956[13] provides that the Chief Whip inrelation toBthe Maharashtra Legislative Assembly means amember of the House who has been declared as theWhip by the party forming the government; iv.The Constitution (Fifty-second Amendment) Act1985, by introducing disqualification of legislators onthe ground of defection, recognised the role of politicalparties in parliamentary democracy; C

v.The decision of the Speaker ought to be set aside onthe ground of procedural irregularity. The Speakerdid not provide the political party with an opportunityDof being heard before issuing the communicationdated 3 July 2022 recognising Mr. Gogawale as theChief Whip;

vi.The decision of the Speaker recognising a whip isnot excluded from judicial review by the provisionsof Article 212 of the Constitution. Article 212 onlyEprecludes judicial review of ‘proceedings in theLegislature of the State’ on the ground of proceduralirregularity. This Court in Raja Ram Pal v.Hon’ble Speaker, Lok Sabha[14 ]has held that Article212 does not exclude judicial review on the groundsFof substantive or gross illegality; and

vii.The Leader of the legislature party must be appointedonly by the political party. The link between thepolitical party and the legislature party would besevered if the legislature party is permitted to appointa Leader different from the candidate selected bythe political party.

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c.An MLA who the Speaker holds to have voluntarily givenup membership for the purpose of the Tenth Schedule 13 "Act of 1956"

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14 (2007) 3 SCC 184

[2023] 8 S.C.R.

Acannot initiate proceedings under Paragraph 15 of theSymbols Order because they will no longer be a part of thepolitical party. Thus, members of a splinter faction who havebeen disqualified cannot be permitted to stake a claim underthe Symbols Order as the political party; Bd.The decision of the ECI does not have any bearing onproceedings under the Tenth Schedule because: (i)Disqualification relates back to the date of the actions whichled to the incurring of disqualification; and (ii) The decisionof the ECI will only have a prospective effect either fromthe date on which proceedings were instituted underCParagraph 15 of the Symbols Order or the decision of theECI in those proceedings; e.The communication of the Governor dated 28 June 2022calling for a trust vote is illegal. The Governor’s power tocall for a trust vote is not unrestrained. The Governor’sDdecision to call for a floor test is subject to judicial reviewand is liable to be quashed if it is based on extraneousconsiderations. The Governor’s decision to call for a floortest on 28 June 2022 was illegal because:

i.The resolution of thirty-four members of the SSLPEwhich is relied upon by the Governor does not statethat they intend to exit the MVA; and

ii.The Governor cannot base his satisfaction on a claimof a majority of the SSLP against the governmentformed by their own political party; F

f.The communication of the Governor dated 30 June 2022calling Mr. Eknath Shinde to take oath as the Chief Ministeris unconstitutional and ought to be set aside for the followingreasons:

i.The Governor calling Mr. Shinde to take oath amountsGto a recognition of a split in the Shiv Sena;

ii.The Governor could not have called Mr. Shinde toform the Government when a disqualification petitionwas pending against him; H

iii.The recommendations of the Sarkaria CommissionAon the order of preference in which the Governorought to call for the formation of the governmentwere approved by this Court in Rameshwar Prasadv. Union of India.[15] The Governor did not followthis order of precedence; B

iv.The decision of the Speaker disqualifying a memberis ex post facto. The Speaker must decide as onfacts that existed on the date the alleged actionincurring disqualification had taken place. Adisqualified member of the Assembly cannot beappointed as a Minister in view of the bar in ArticleC164(1-B) of the Constitution.

g.The order of this Court dated 27 June 2022 created a hiatusin the operation of the Tenth Schedule.

41. Dr. Abhishek Manu Singhvi, learned senior counsel appearingon behalf of the petitioners made the following submissions:

D

a.The status quo ante as on 27 June 2022 ought to be restoredfor the following reasons:

i.The order of this Court on 27 June 2022 extendingthe time granted to the respondents to respond to theEdisqualification petitions created a negative injunctionon the functioning of the Speaker. The order of thisCourt on 29 June 2022 declining to stay the trust votewas a positive order. The Government in the Stateof Maharashtra would not have changed ‘but for’the above orders of this Court (relied on IndoreFDevelopment Authority v. Manohar Lal;[16]

E

ii.The order of this Court on 27 June 2022 is contraryto the judgment of the Constitution Bench in KihotoHollohan (supra)where it was held that judicialreview cannot be made available at a stage prior tothe decision of the Speaker under the Tenth Schedule.By this order, the court tilted the delicate balance ofunfettered functioning of different constitutionalfunctionaries in their respective spheres; G

16 (2020) 8 SCC 129

H

Aiii.The order of this Court on 29 June 2022 held that thetrust vote would be “subject to the final outcome ofthe instant writ petition as well as the writ petitionsreferred above.” Thus, the consequences and thenew status quo created must be subject to the finaloutcome of the instant proceedings. Status quo anteBought to be restored as on 27 June 2022. The powerof the court to restore status quo ante is not unheardof. This Court directed status quo ante in NabamRebia (supra); and

iv.This Court must direct status quo ante to give effectCto the object behind the introduction of the TenthSchedule, which is to curb the evil of politicaldefections; b.Immediately after his appointment as the Speaker on theevening of 3 July 2022, Mr. Rahul Narwekar recalled theDorder of the Deputy Speaker dated 21 June 2022 recognisingMr. Ajay Choudhari as the Leader of SSLP and Mr. BharatGogawale as the Chief Whip of the SSLP. The validity ofthe order of the Deputy Speaker dated 21 June 2022 wassub judice before this Court. Further, upon his appointment,Ethe Speaker issued notice only on the disqualification petitionsinstituted by the respondents. The Speaker has behavedcontrary to the spirit of neutrality and independence.Allowing the Speaker to decide the disqualification petitionwould amount to incentivising defection. Thus, this Courtand not the Speaker must decide the disqualificationFpetitions;

c.The Governor could not have directed a trust vote whenthe legality of the disqualification petitions was pendingconsideration; Gd.The letter of the Governor dated 28 June 2022 recognisesa split in the Shiv Sena. He does not have the authority torecognise a split; e.The majority in SR Bommai v. Union of India[17 ]held thatit would be open to the Court to restore status quo anteH17 (1994) 3 SCC 1

before the issuance of the proclamation if the presidentialproclamation was invalid. It was held that status quo antecould be restored even if the proclamation is approved byboth the Houses of Parliament. It was also held that it wouldbe open to the court to mould the relief while restoring statusquo ante. Thus, this Court has the power to mould relief byholding that legislations passed in the intervening periodwould not be invalid but other actions during the pendencyof the disqualification proceedings such as the election ofthe Speaker would be invalid if those who voted for theSpeaker are held to have incurred disqualification;

f.Article 189(2) extends only to situations where there is achallenge to the proceedings solely because of the eligibilityof the members and there is no per se challenge to thevalidity of the proceedings. However, in the instant case,there is a prior challenge to the decision of the Governor todirect a trust vote. This action of the Governor cannot beimmunised from judicial review by virtue of Article 189(2); g.The resignation of Mr. Uddhav Thackeray on 29 June 2022cannot dilute the illegality of the action of the Governor indirecting a trust vote; h.The decision of the ECI under Paragraph 15 of the SymbolsOrder will have prospective effect. The decision of the ECIrecognising one of the factions as the Shiv Sena for thepurposes of the Symbols Order cannot be appliedretrospectively to the pending disqualification petitions. Suchan interpretation would also be contrary to settled law thatdisqualification relates back to the date when the actionsconstituting defection were committed; and

i.MLAs who are dissatisfied with the status quo of the politicalparty are entitled to resort to a merger under paragraph 4,or resign and re-contest elections, or apply to the ECI underParagraph 15 of the Symbols Order for recognition of theirfaction as the political party and await the decision of theECI. The members ought to be disqualified if they havechosen to act in a manner that is prohibited under the TenthSchedule.

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A42. Mr. Devdatt Kamat, learned senior counsel appearing on behalfof the petitioners made the following submissions:

a.The term ‘political party’ as it occurs in the Tenth Schedulerelates to the association of persons registered under Section29A of the Representation of the People Act 1951. ‘PoliticalBparty’ refers to the leadership structure subsisting on thedate of the alleged prohibited conduct until the recognitionof the political party and its leadership structure is alteredunder the law; b.The members of the legislature party cannot claim that theyCrepresent the political party as a defence to thedisqualification petitions instituted against them. Any suchfactionis only entitled to advance such a claim before theECI in proceedings under the Symbols Order. The memberscannot indulge in conduct that is prohibited under the TenthSchedule until their claim is settled under the Symbols Order; D

c.The Tenth Schedule will be put on a hiatus if the contentionof the respondents that the disqualification petitions dependon the adjudication of their claim under Paragraph 15 ofthe Symbols Order is accepted; and d.The respondents could not have initiated proceedings underEParagraph 15 of the Symbols Order when disqualificationpetitions are pending against them since the factor oflegislative majority laid down in Sadiq Ali v. ElectionCommission of India[18 ]maybe altered based on theadjudication of the disqualification proceedings.

F43. Mr. Neeraj Kishan Kaul, learned senior counsel appearing onbehalf of the respondents, made the following submissions:

a.In terms of Paragraph 6 of the Tenth Schedule, the Speakeris the sole constitutional authority to adjudicate upon theissue of disqualification. Moreover, Article 212(1) of theGConstitution provides that the validity of proceedings of thestate legislature cannot be called into question before courts.The petitioners are attempting to surpass the constitutionalauthority of the Speaker to adjudicate upon thedisqualification petitions; H18 (1972) 4 SCC 664

b.The concept of per se disqualification is unknown to theAConstitution. Any decision as to the disqualificationproceedings under the Tenth Schedule must be taken afterfollowing the due process of law and the principles of naturaljustice. A member incurs disqualification only afteradjudication by the Speaker. The procedure for theBadjudication of disqualification petitions is prescribed underthe Maharashtra Legislative Assembly (Disqualification onGround of Defection) Rules 1986;[19]

c.The MLAs facing disqualification retain the right toparticipate in the proceedings of the House and vote onresolutions. Article 189(2) of the Constitution provides thatany proceedings of the House are not invalid even if it issubsequently discovered that persons who were not entitledto participate or vote or otherwise take part in theproceedings, did so. In Pratap Gouda Patil v. State ofKarnataka[20] and Speaker, Haryana Vidhan Sabha v.Kuldeep Bishnoi,[21 ]this Court observed that membersshould not be stopped from taking part in the proceedingsof the House merely because disqualification proceedingswere pending against them; C

D

d.Prior to the deletion of Paragraph 3 of the Tenth Schedule,the Speaker’s enquiry as to the existence of a split within apolitical party was limited to a prima facie determinationfor deciding the disqualification proceedings. As a result ofthe deletion of Paragraph 3, the authority of the Speaker toform even a prima facie opinion regarding a split within apolitical party has been removed. Upon the deletion ofParagraph 3, the only defence for disqualificationproceedings under the Tenth Schedule is that of a mergerunder Paragraph 4. The ECI is the sole authority empoweredto decide disputes between rival factions of a political partyaccording to the provisions of the Symbols Order; EF

G

e.A majority of a legislature party may appoint the Leaderand the Chief Whip of the legislature party. The 1986 Rules 19 "1986 Rules”

20 (2019) 7 SCC 463

21 (2015) 12 SCC 381

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Aprovide that only the members of the legislature party shallchoose their Leader. When the Leader and the Chief Whipare elected by the majority of the legislature party, theSpeaker must take a prima facie view and grant recognitionto such Leader and Chief Whip for the purposes of theTenth Schedule. The Speaker has no choice but to appointBa Leader and a Chief Whip elected by a majority of themembers of the legislature party; and f.The decision of the Governor calling Mr. Eknath Shinde toform the Government is valid and cannot be called intoquestion because:

C

i.Mr. Thackeray resigned on 29 June 2022 withoutfacing the floor test;

ii.On the resignation of Mr. Thackeray, it was theconstitutional duty of the Governor to call upon anotherperson who commanded the majority in theLegislative Assembly to form the government; and D

iii.Mr. Shinde staked his claim to form the governmentand subsequently proved his majority on the floor ofthe Legislative Assembly.

E44. Mr. Tushar Mehta, learned Solicitor General, appearing onbehalf of the Governor, made the following submissions:

a.The decision of the Governor calling upon Mr. Thackerayto prove his majority on the floor of the House was justifiedbecause:

F

i.The Governor has a constitutional obligation to ensurethat the Council of Ministers led by the Chief Ministerenjoys the support of the majority of the House. TheGovernor directed Mr. Thackeray to face the floortest based on the prevailing circumstances and theGmaterial before him;

ii.In directing the floor test, the Governor did not decidewho enjoys the majority in the Legislative Assembly.Further, he did not decide any matter pertaining tothe disqualification petitions or the split within the ShivHSena;

iii.The Governor is not precluded from exercising theirAdiscretionary power to call for a floor test.Constitutional propriety requires the Governor to actindependently and call for an immediate floor testwhen serious doubts have been raised about themajority enjoyed by the incumbent government in theBLegislative Assembly. In the present case, theGovernor called for the floor test based on thefollowing objective facts:

I.The letter dated 21 June 2022 along with theresolution signed by thirty-four MLAs of theCSSLP reaffirming support to Mr. Shinde as theLeader of the SSLP;

II.The letter dated 25 June 2022 addressed bythirty-eight MLAs of the SSLP claiming thatthe lives of the MLAs and their familyDmembers were under threat, as was theirproperty; and

III.The letter dated 28 June 2022 by the Leaderof Opposition requesting him to call upon thethen-Chief Minister to prove his majority onthe floor of the Legislative Assembly.E

b.The Supreme Court in S R Bommai (supra) and ShivrajSingh Chouhan v. Union of India[22 ]held that calling foran immediate floor test is the most appropriate measure incase any doubt arises as to whether the Chief Minister andthe Council of Ministers enjoy the confidence of the House; F

c.The issue of the propriety of the Governor’s action callingMr. Thackeray to prove his majority on the floor of theHouse has become infructuous because the latter did notface the floor test and instead resigned from the post ofChief Minister; andG

d.The decision of the Governor to administer the oath of officeto Mr. Shinde cannot be called into question as it was basedon the following objective facts:

Ai.The letter dated 30 June 2022 by Mr. DevendraFadnavis extending support to Mr. Eknath Shinde forthe formation of the government by the latter;

ii.The letter dated 30 June 2022 by Mr. Eknath Shindeinforming the Governor that he enjoys the support ofBa majority of the MLAs and requesting the Governorto invite him to take oath as Chief Minister; and

iii.The letters dated 30 June 2022 by seventeenindependent MLAs and MLAs from other partiessupporting Mr. Eknath Shinde.

C45. Mr. Maninder Singh, learned senior counsel for the respondentsmade the following submissions:

a.The disqualification petitions under the Tenth Schedule mustbe decided by the Speaker. Reliance by the petitioners onRajendra Singh Rana (supra) is erroneous because in thatDcase, the disqualification petitions were already decided bythe Speaker. It was only in appeal that this Court decidedthe issue of disqualification instead of remanding the matterback to the Speaker; b.The disqualification of a member by the Speaker under theTenth Schedule has drastic consequences. There can neverEbe an automatic or deemed disqualification of an electedrepresentative without affording any opportunity of hearing(relied on Kshetrimayum Biren Singh v. Hon’ble Speaker, Manipur Legislative Assembly[23]);

c.The Tenth Schedule cannot be used to stifle intra-partyFdissent amongst members of the same political party. Intra-party dissent cannot be termed as defection. Therefore,the respondents did not indulge in prohibitory conduct underParagraph 2(1)(a) of the Tenth Schedule. Any act ofexpression of dissent against the leadership of the partyGdoes not constitute ‘voluntarily giving up membership ofthe party’ under Paragraph 2(1)(a). Paragraph 2(1)(b) alsohas no applicability in the facts of the present case; d.After the deletion of Paragraph 3 from the Tenth Schedule,the Speaker has no jurisdiction to take cognizance of a split H23 (2022) 2 SCC 759

in a political party. The ECI has the exclusive jurisdiction todecide a split in a political party under Paragraph 15 of theSymbols Order; and A

e.The order of this Court on 27 June 2022 granting additionaltime to the respondents to reply to the disqualificationpetitions was in accordance with the principles of naturaljustice.

B

46. Mr. Mahesh Jethmalani, learned senior counsel appearing forthe respondents made the following submissions:

a.The concept of ‘deemed disqualification’ does not existunder the Constitution. Disqualification must be actual andCthere is a mandated procedure for disqualificationproceedings under Rule 7(7) of the 1986 Rules; b.The Speaker decides disqualification proceedings withreference to the date of on which action due to which theMLA is alleged to have incurred disqualification, iscommitted. However, in view of Articles 189(2) and 191(2)of the Constitution, the order of disqualification only hasprospective effect; and D

c.The petitioners instituted disqualification petitions againstsixteen out of the thirty-nine MLAs who were part of Mr.Shinde’s faction to entice those against whom petitions werenot filed to gravitate towards Mr.Thackeray’s faction. Thepetitioners knew that if all thirty-nine MLAs weredisqualified, the MVA government would fall. Later, on 27June 2022, a second disqualification petition was filed againstthe remaining twenty-three MLAs.

E

F

47. Mr. Harish Salve, learned senior counsel for the respondentsmade the following submissions:

a.During the pendency of the disqualification petitions, MLAsare entitled to participate in the proceedings of the House.Article 189(2) of the Constitution indicates that thesubsequent disqualification of a member does not vitiateany actions in the House; and G

b.The petitioners argued that but for the interim order of theSupreme Court, the disqualification would have followed, H

A

Athat Mr. Thackeray would not have resigned, and that hewould have survived the trust vote. This Court should notenter into the realm of speculation while decidingconstitutional matters. In the eventuality that Mr. Thackerayfaced the floor test, he would not have had the support ofthe majority of the legislators. Mr. Thackeray’s resignationBon the eve of the trust vote is a testament to the fact that hehad lost the confidence of the House.

E. Analysis

i. Reference of Nabam Rebia’s case to a larger Bench C

48. Article 179 stipulates that a Speaker (or a Deputy Speaker)may be removed from their office by a resolution passed by a majorityof “all the then members of the Assembly.” Article 179 of the Constitutionreads as follows:

“179. A member holding office as Speaker or Deputy Speaker ofDan Assembly—

…

(c) may be removed from his office by a resolution of the Assemblypassed by a majority of all the then members of the Assembly:

Provided that no resolution for the purpose of clause (c) shall bemoved unless at least fourteen days’ notice has been given of theintention to move the resolution:

E

Provided further that, whenever the Assembly is dissolved, theSpeaker shall not vacate his office until immediately before theFfirst meeting of the Assembly after the dissolution.”

49. In Nabam Rebia (supra), the INC formed the government inArunachal Pradesh under the leadership of Mr. Nabam Tuki. Mr. NabamRebia was elected as the Speaker of the Arunachal Pradesh LegislativeAssembly. In October 2015, a section of the MLAs of the INC formedGa separate group and opposed the leadership of the Chief Minister. TwentyMLAs of the INC along with two independent MLAs wrote to theGovernor claiming that the Chief Minister has lost the trust and confidenceof the House. Later, certain MLAs from the opposition parties issued anotice of intention to move a resolution for the removal of the Speakerof the Assembly under Article 179(c) of the Constitution. Thereafter, H

the Chief Whip of the Congress Legislature Party filed disqualificationpetitions under Paragraph 2(1)(a) of the Tenth Schedule against fourteenMLAs of the INC for breaching party directions. The Speaker thenissued notices in the disqualification petitions to the MLAs.

50. On 9 December 2015, the Governor issued an order advancingthe session of the Assembly originally scheduled to be held on 14 January2016 to 16 December 2015. On the same day, the Governor also issueda message under Article 175(2). In the message, he fixed the resolutionfor the removal of the Speaker as the first item on the agenda of theHouse and tasked the Deputy Speaker with conducting the proceedingsof the House. The Governor also directed that the Presiding Officershall not alter the party composition in the House till the session wasprorogued. On 17 December 2015, the Government headed by the ChiefMinister Mr. Nabam Tuki was declared to have lost the confidence ofthe House.

51. It was in this context that Nabam Rebia (supra) came to bedecided. A Constitution Bench of this Court in that case (speaking throughthe majority opinion authored by Khehar, J. and the concurring opinionby Misra, J., as the learned Chief Justices then were) inter alia ruledthat it was impermissible for a Speaker to adjudicate upon disqualificationpetitions under the Tenth Schedule after a notice of intention to move aresolution for their removal from the office of the Speaker was issued.

52. Khehar, J. grounded his opinion on constitutional and moralreasoning. The learned Judge observed that when the position of theSpeaker is under challenge, it would “seem” just and proper for theSpeaker to establish their right to continue before adjudicating on thedisqualification petition(s) pending before them:

“189. When the position of a Speaker is under challenge, througha notice of resolution for his removal, it would “seem” just andappropriate, that the Speaker first demonstrates his right to continueas such, by winning support of the majority in the State Legislature.The action of the Speaker in continuing, with one or moredisqualification petitions under the Tenth Schedule, whilst a noticeof resolution for his own removal, from the Office of the Speakeris pending, would “appear” to be unfair. Why would a Speakerwho is confident of his majority, fear a floor test? After his positionas the Speaker is affirmed, he would assuredly and with conviction, A

B

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A

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Adeal with the disqualification petitions, under the Tenth Schedule.And, why should a Speaker who is not confident of facing a motion,for his removal, have the right to adjudicate upon disqualificationpetitions, under the Tenth Schedule? The manner in which thematter has been examined hereinabove, is on ethicalconsiderations. A constitutional issue, however, must have aBconstitutional answer. We shall endeavour to deal with theconstitutional connotation of the instant issue, in the followingparagraphs.”

53. Khehar, J. referred to the Constituent Assembly Debates toelucidate the meaning of the phrase “all the then members of theCAssembly” as it appears in Article 179(c) (draft Article 158). In thecourse of the debates in the Constituent Assembly, Mr. Mohd. Tahirproposed to substitute the phrase “all the then members of the Assembly”with the phrase “the members of the Assembly present and voting”.However, the proposed amendment was negatived. Justice KheharDobserved that the Constituent Assembly Debates do not appear to haverecorded any discussion on this proposed amendment. Khehar, J. notedthat this meant that the members of the Constituent Assembly used thephrase to indicate definiteness and that any change in the composition ofthe Assembly when the notice of intention to move a resolution for theremoval of the Speaker was pending would conflict with the expressEmandate of Article 179(c):

“191. […] We are satisfied that the words “passed by a majorityof all the then Members of the Assembly”, would prohibit theSpeaker from going ahead with the disqualification proceedingsunder the Tenth Schedule, as the same would negate the effect ofFthe words “all the then Members”, after the disqualification ofone or more MLAs from the House. The words “all the thenMembers”, demonstrate an expression of definiteness. Any changein the strength and composition of the Assembly, by disqualifyingsitting MLAs, for the period during which the notice of resolutionGfor the removal of the Speaker (or the Deputy Speaker) is pending,would conflict with the express mandate of Article 179(c), requiringall “the then Members” to determine the right of the Speaker tocontinue.”

54. The opinion of the majority further noted that the purposeHsought to be achieved through the Tenth Schedule is clear and unambiguous, and that it is distinct from the purpose sought to be achievedby Article 179(c):

“192. The purpose sought to be achieved through the TenthSchedule, is clear and unambiguous. The same is unrelated to,and distinct from, the purpose sought to be achieved through Article179(c). Neither of the above provisions, can be seen as conflictingwith the other. Both, must, therefore, freely operate within theirindividual constitutional space. Each of them will have to beinterpreted, in a manner as would serve the object sought to beachieved, without treading into the constitutional expanse of theother. The interpretation would have to be such, as would maintainconstitutional purpose and harmony.”

55. Khehar, J. observed that if the Speaker decided a disqualificationpetition before surviving the vote, it would prejudice the MLAs facingdisqualification but not the Speaker. The disqualified MLAs would nothave a right to participate in the motion moved against the Speaker evenif the order of disqualification was set aside. They would, in his view,have been effectively deprived of the opportunity to participate in themotion against the Speaker. However, the MLAs would not lose theirright to participate if the disqualification petition was taken up after themotion against the Speaker was put to vote.

56. Referring to the first proviso to Article 179, Misra, J. observedthat the Speaker would gain an advantage if they were allowed to changethe composition of the Assembly by adjudicating the disqualificationpetitions in the fourteen days when the notice was pending. This, heobserved, would result in a constitutional conflict between the role of theSpeaker as the presiding member of the Assembly and the role of theSpeaker as a Tribunal under the Tenth Schedule. Misra, J. also referredto the amendment to Article 179(c) (draft Article 158) that was negativedby the Constituent Assembly, to reach the same conclusion as Khehar,J. Article 181(2) of the Constitution provides that the Speaker shall havethe right to speak in and take part in the proceedings of the LegislativeAssembly while a resolution for their removal from office is underconsideration but shall not be entitled to vote in case of an equality ofvotes. The learned Judge held that the requirement under Article 181(2)when contradistinguished with Article 189 restricts the power of theSpeaker to participate in the proceedings seeking their removal sincethe Speaker has been given the power to vote in the event of an equality AB

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Aof votes under the latter provision. This constitutional design indicated,in the view of the Judge, that the Speaker cannot be given the power tointerfere with the resolution for their removal.

57. Madan Lokur, J. held that the Court was not called upon todecide this issue: B

“401. In the view that I have taken, I am of the opinion that theview expressed by my learned Brothers relating to the power orpropriety of the Speaker taking a decision under the Tenth Scheduleof the Constitution with regard to the fourteen Members of theLegislative Assembly does not at all arise in these appeals.” C

58. As noticed in the previous segment of this judgment, this Courtdeferred taking a view on the question of whether the decision in NabamRebia (supra) ought to be referred to a larger Bench until the hearingon the merits of the case was concluded.

59. Having considered the submissions advanced by counsel forDall the parties, we are of the view that the ruling in Nabam Rebia (supra)does not apply to the factual scenario of the present case.

60. In terms of Article 180 of the Constitution, the Deputy Speakerperforms the duties of the Speaker while the office of the Speaker isvacant. The functions of the Speaker include the adjudication ofEdisqualification petitions. In the present case, the office of the Speakerof the Maharashtra Legislative Assembly was vacant and the DeputySpeaker Mr. Narhari Zirwal was discharging the functions of the Speaker.A notice of intention to move a resolution for his removal under Article179 is stated to have been issued on 22 June 2022. Mr. Sunil PrabhuFfiled disqualification petitions against some of the MLAs led by Mr. Shindeon 23 June 2022.

61. The first circumstance commences with the notice dated 21June 2022, under Article 179(c) asking the Deputy Speaker to refrainfrom discharging his functions. The reply of the Deputy Speaker is crucial.The relevant portion is as under:G

“In view of the gravity of the subject matter of the saidcommunication, it is imperative that the genuineness of thecommunication be verified and ascertained before taking the sameon record. Therefore, unless and until the persons who havepurportedly signed the aforesaid communication satisfy the H

undersigned about the authenticity of any such notice, suchcommunication is not liable to be taken on record or acted upon.

In view of the same and in my capacity as the Master of House,unless and until the genuineness and the veracity of any suchcommunication and its signatories is ascertained, no further actioncan be taken and said communication dated 22.06.2022 is thereforenot being taken on record. Any such notice will only be taken onrecord after I am satisfied of its genuineness and authenticity.”

62. It is evident from the above that the Deputy Speaker decidednot to take cognizance of the notice under Article 179(c). We believethat the Speaker being the adjudicator, their understanding of thejurisdiction that they may or may not exercise is of utmost importance.The Deputy Speaker proceeded to issue notices to the respondents on25 June 2022, requiring them to file written submissions by 27 June 2022.The notice was as follows:

“Whereas the Applicant has filed Application Number 1 of 2022for disqualification of you Non-Applicant before Deputy Speaker,Maharashtra Legislative Assembly, we hereby along with all theannexed documents issue summons as under. You are instructedto submit written submissions as per the procedure laid in themembers of Maharashtra Legislative Assembly (Disqualificationon ground of defections) Rules 1986) by Monday, 27th June 2022by 5.30 pm to Deputy Speaker. You are also instructed to submitall the relevant documents you are going to rely or dependent tobe submitted along with this reply. You also note that, if thesewritten submissions not given within stipulated time, it will beassumed that you have nothing to say on this Application &decision will be taken accordingly.”

63. As is evident from the above, the Deputy Speaker did notconsider the decision in Nabam Rebia (supra) as an impediment, fromproceeding to adjudicate upon the complaint made under the TenthSchedule.

64. The sixteen MLAs filed a Writ Petition under Article 32 beforethis Court being W.P. (C) Nos. 468-469 of 2022 raising two grounds.The first relates to the disability of the Speaker in proceeding with thehearing in view of the decision in Nabam Rebia(supra). The secondground relates to the legality of the summons issued by the Deputy AB

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ASpeaker granting only forty-eight hours for filing a written statement.What is important is the order passed by this Court on 27 June 2022which is as under:

“Meanwhile as an interim measure, the time granted by the DeputySpeaker of the Assembly to the petitioners or other similarly placedBMembers of the Legislative Assembly to submit their writtensubmissions upto today by 5.30P.M., is extended till 12.07.2022.”

65. It is clear that this Court did not injunct the Deputy Speakerfrom proceeding with the hearing of the cases under the Tenth Schedule.In fact, this Court merely extended the time for filing a written statementCtill 12 July 2022, which goes to show that this Court intended that theproceedings must go on.

66. The petitioners urge that that the order of this Court dated 27June 2022 relied on the decision in Nabam Rebia (supra) to injunct theDeputy Speaker from adjudicating the disqualification petitions. ThisDsubmission cannot be accepted. Although the parties may have addressedthis Court on the applicability of Nabam Rebia (supra), the order dated27 June 2022 did not rely on Nabam Rebia (supra) to injunct the DeputySpeaker from adjudicating the disqualification petitions on the groundthat a notice of intention to move a resolution for his removal had beenissued. This Court instead granted an extension of time to the personsEagainst whom disqualification petitions were filed, to file their writtensubmissions, in view of the principles of natural justice.

67. The election of the Speaker was conducted shortly thereafter,and Mr. Rahul Narwekar was appointed as the Speaker. As aconsequence, the Deputy Speaker was no longer required to dischargeFthe functions of the Speaker. It fell to the Speaker to adjudicate anydisqualification petitions that were pending. This being the case, NabamRebia (supra) does not apply to the lis before us. We will thereforerender a verdict on the merits of the matter.

68. The reason why the Deputy Speaker did not proceed with theGhearing is completely attributable to events that happened thereafter.After the notice of intention to move a resolution for the removal of theDeputy Speaker was issued, the subsequent events such as the Governorcalling upon the then Chief Minister to prove the majority on the floor ofthe House, followed by the resignation of the then Chief Minister,formation of the new government, election of the new Speaker andH

passing of the trust vote, all in quick succession, happening within afortnight relegated the issue now referred to seven Judges to the backseat.These events brought about a dramatic change in the power structureand the reasons for such change became the main challenge and morefundamental to the present proceedings. The case of the petitioners nowrests on their challenges to the decisions of, (i) the Governor callingupon the then Chief Minister to prove his majority; (ii) swearing in Mr.Ekanth Shinde as the Chief Minister; (iii) election of the Speaker by theHouse which included the thirty-four MLAs who are facingdisqualification notices; and (iv) legality of the trust vote dated 4 July2022.

69. Although the decision in Nabam Rebia (supra) is not applicableto the factual scenario before us, we are alive to the competingconsiderations which animated this Court in its order dated 23 August2022 by which the decision in Nabam Rebia (supra) was referred to aConstitution Bench. In that order, this Court formed a prima facie opinionthat the proposition of law laid down in Nabam Rebia (supra) was basedon “contradictory reasoning.” The order of reference notes:

“4. We may prima facie observe that the proposition of law laiddown by the Constitution bench in Nabam Rebia (supra), standson contradictory reasoning, which requires gap filling to upholdthe constitutional morality. As such, this question needs a referenceto a Constitution bench for the requisite gap filling exercise to beconducted.”

70. Based on the submissions which have been canvassed beforeus, we are of the view that the decision in Nabam Rebia (supra) meritsreference to a larger Bench because a substantial question of law remainsto be settled. The following are our prima facie reasons for reachingthis conclusion:

a.Nabam Rebia (supra) is in conflict with the judgement inKihoto Hollohan (supra) because the decision in KihotoHollohan (supra) holds that there is no reason to doubt theindependence and impartiality of the Speaker whenadjudicating on proceedings under the Tenth Schedule. Incontrast, in Nabam Rebia (supra), this Court doubted theability of the Speaker to remain neutral while decidingdisqualification petitions after a notice of intention to movea resolution for the removal of the Speaker has been issued.

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Ab.In Nabam Rebia (supra), this Court referred to theConstituent Assembly Debates to interpret the phrase “allthe then members” in Article 179(c). This Court noticedthe amendment moved by Mr. Mohd Tahir, proposing thatthe term “all the then members of the Assembly” in Article179(c) (draft Article 158(c)) be replaced with the term “allBthe members of the Assembly present and voting.” InNabam Rebia (supra), this Court noticed that this proposalwas rejected and observed that the “Constituent AssemblyDebates do not appear to have recorded any discussion onthe above amendment.” It was inter alia on this basis thatCthis Court held that the phrase “all the then members of theAssembly” meant that the composition of the Assemblyought not to be changed after the notice of intention to movea resolution for the removal of the Speaker (or the DeputySpeaker) was issued. However, the members of theConstituent Assembly discussed the import of the phraseD“all the then members” occurring in other provisions of theConstitution. Dr. BR Ambedkar clarified that the phrase“all the then members” has been used to indicate allmembers who are members of Parliament and whose seatsare not vacant, and it does not mean members sitting orEpresent and voting. This Court appears not to have noticedthe entirety of the discussion in the Constituent Assemblyregarding the phrase “all the then members” while usingthe Constituent Assembly Debates as an internal aid ofinterpretation; Fc.Article 181 of the Constitution provides that the Speakershall not preside over a sitting of the Legislative Assemblywhile a resolution for their removal is under consideration./It appears that the majority in Nabam Rebia (supra) didnot consider the effect and import of Article 181, andwhether the Constitution envisages the imposition of anyGrestriction on the functions of the Speaker beyond the limitedrestriction imposed by Article 181; d.The second proviso to Article 179 provides that wheneverthe Assembly is dissolved, the Speaker shall not vacate theiroffice until immediately before the first meeting of theH

Assembly after the dissolution. This Court did not considerif the Constitution envisages a restriction on the continuousperformance of the functions of the Speaker under the TenthSchedule in view of this provision; A

e.Rule 11 of the Maharashtra Legislative Assembly Rulesstipulates that upon the expiry of the period of fourteendays provided under the proviso to Article 178, leave isgranted to move the motion only when twenty-nine membersvote in favour of it. This Court did not consider the possibilitythat a notice of intention to move a resolution for the removalof the Speaker may not culminate in such a motion beingmoved. The Speaker may be effectively barred fromadjudicating disqualification petitions based on the mereissuance of a notice of intention to move a resolution byone member of the House; B

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f.It appears that the following aspects were not consideredin Nabam Rebia (supra):

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i.Whether the temporary disablement of the functionsof the Speaker under the Tenth Schedule is prone tomisuse by MLAs who anticipate that disqualificationpetitions will be instituted against them or by MLAsagainst whom disqualification petitions have alreadyEbeen instituted; and

ii.Whether a “constitutional hiatus” in the operation ofthe Tenth Schedule ensues because of the temporarydisablement of the Speaker.

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71. To give quietus to the issue, we refer the following question(and any allied issues which may arise) to a larger Bench: whether theissuance of a notice of intention to move a resolution for the removal ofthe Speaker restrains them from adjudicating disqualification petitionsunder the Tenth Schedule of the Constitution. The matter may be placedbefore the Chief Justice for appropriate orders. We accordingly answerthe question referred to us as noted in Paragraph 32(a) of this judgment.

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72. Pending the decision of the larger Bench, as an interim measure,adoption of the following procedure may subserve the objective of theTenth Schedule, Symbols Order as well as Article 179(c). It may alsoprovide some amount of clarity and certainty.

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Aa.The investiture of exclusive adjudicatory jurisdiction uponthe Speaker to determine the complaints under the TenthSchedule will entitle the Speaker to rule upon and decideapplications questioning their jurisdiction; and

b. (i) The Speaker is entitled to rule on applications which requireBthem to refrain from adjudicating proceedings under theTenth Schedule on the ground of initiation of a motion fortheir removal under Article 179(c). A Speaker can examineif the application is bonafide or intended only to evadeadjudication; C(ii)If the Speaker believes that the motion is well founded,they may adjourn the proceedings under the Tenth Scheduletill the decision for their removal is concluded. On the otherhand, if they believe that the motion is not as per theprocedure contemplated under the Constitution, read withthe relevant rules, they are entitled to reject the plea andDproceed with the hearing; and

(iii) The decision of the Speaker, either to adjourn theproceedings under the Tenth Schedule in view of thepending proceedings under Article 179(c) or to proceed withthe hearing will be subject to judicial review. As the decisionEof the Speaker relates to their jurisdiction, the bar of aquatimet action, as contemplated in Kihoto Hollohan(supra) will not apply.

ii. The power of this Court to decide disqualification petitions atthe first instanceF73. The petitioners have urged that the Speaker cannot be F73. The petitioners have urged that the Speaker cannot beentrusted with the adjudication of disqualification petitions because isbiased and partial as he was appointed with the support of the MLAsagainst whom disqualification petitions have been filed. They have reliedon Rajendra Singh Rana (supra) to argue that this Court should decidethe disqualification petitions against the respondents.G

74. Article 191(2) of the Constitution stipulates that an MLAdisqualified under the Tenth Schedule shall be disqualified for being amember of the House. Under Paragraph 6 of the Tenth Schedule, theSpeaker has the exclusive jurisdiction to decide the question ofdisqualification. Paragraph 8 empowers the Chairman or Speaker of theHHouse to make rules on the procedure for deciding any question referred to in Paragraph 6 including the procedure for any inquiry which may bemade for the purpose of deciding such question. In exercise of the powersconferred under Paragraph 8, the Speaker of the Maharashtra LegislativeAssembly notified the 1986 Rules.

75. Rule 6 of the 1986 Rules lays down the procedure for thefiling of disqualification petitions against a member of the House beforethe Speaker. Rule 7 provides that the Speaker may either dismiss thepetition for non-compliance with the requirements laid down under Rule6 or proceed to determine the question of disqualification against a memberof the House. According to Rule 7(7), the Speaker must grant areasonable opportunity to such member to represent their case. Rule 8provides that the Speaker shall after due consideration of the merits ofthe case either dismiss the disqualification petition or declare that themember has become subject to disqualification under the Tenth Scheduleby an order in writing. Thus, the Tenth Schedule (read together with the1986 Rules for Maharashtra) provides a detailed procedure guiding theexercise of power by the Speaker under the Tenth Schedule. The Speakermust decide disqualification petitions by following this procedure.

76. In Kihoto Hollohan (supra), this Court held that the Speakeris a Tribunal for the purposes of the Tenth Schedule. Therefore, theexercise of power under the Tenth Schedule is subject to the jurisdictionof Courts under Articles 136, 226, and 227 of the Constitution. ThisCourt further observed that the finality clause contained in Paragraph6(2) did not completely exclude the jurisdiction of Courts. However, itwas held that such a clause limits the scope of judicial review becausethe Constitution intended the Speaker or the Chairman to be “therepository of adjudicatory powers” under the Tenth Schedule. This Courtheld that judicial review is not available at a stage prior to the decision ofthe Speaker or Chairman, save in certain exceptional circumstancesdetailed in that case. Thus, Kihoto Hollohan (supra) makes it evidentthat the exclusive power to decide the question of disqualification underthe Tenth Schedule vests with the Speaker or Chairman of the House.

77. The petitioners have relied on Rajendra Singh Rana (supra)to urge that this Court should invoke its extraordinary jurisdiction anditself decide the question of disqualification against the respondent MLAs.Alternatively, it is urged that this Court should direct the Deputy Speaker,Mr. Zirwal, who was performing the functions of Speaker prior to 3 July2022, to decide the disqualification petitions.

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A78. In Rajendra Singh Rana (supra), disqualification petitionswere filed against thirteen MLAs of the Bahujan Samaj Party[24] on 4September 2003. On 26 August 2003, the Speaker accepted a split in theBSP and recognized a separate group by the name of Lok Tantrik BahujanDal. The thirteen MLAs against whom disqualification petitions wereinstituted were also part of the Lok Tantrik Bahujan Dal. On 6 SeptemberB2003, the Speaker accepted the merger of the Lok Tantrik Bahujan Dalwith the Samajwadi Party without deciding the disqualification petitionsagainst the thirteen MLAs. On 7 September 2005, the Speaker rejectedthe disqualification petitions against the MLAs. By its judgment dated28 February 2006, the High Court quashed the order of the SpeakerCrejecting the disqualification petitions against the MLAs and directedhim to reconsider the petitions.

79. On appeal, this Court observed that it would not be appropriatefor it to decide the disqualification petitions for the first time when theconcerned authority had not taken a decision. It observed that this CourtDwould normally remit the matter to the Speaker or Chairman to take aproper decision in accordance with law. However, this Court decided toadjudicate the disqualification petitions in view of the following peculiarfacts and circumstances: (i) the Speaker of the Legislative Assembly inthat case failed to decide the question of disqualification in a time-boundmanner; (ii) the Speaker decided the issue of whether there was a splitEin the party without deciding whether the MLAs in question weredisqualified; and (iii) the necessity of an expeditious decision in view ofthe fact that the disqualification petitions were not decided by the Speakerfor more than three years and the term of the Assembly was coming toan end. In view of the above facts and circumstances, this Court was of Fthe opinion that remanding the disqualification proceedings to the Speakerwould lead to them becoming infructuous.

80. This Court should normally refrain from deciding disqualificationpetitions at the first instance, having due regard to constitutionalintendment. The question of disqualification ought to be adjudicated byGthe constitutional authority concerned, namely the Speaker of theLegislative Assembly, by following the procedure prescribed.Disqualification of a person for being a member of the House has drasticconsequences for the member concerned and by extension, for thecitizens of that constituency. Therefore, any question of disqualificationH24 "BSP”

ought to be decided by following the procedure established by law. InKshetrimayum Biren Singh (supra), a three-Judge Bench of this Courtset aside the order of the Speaker disqualifying MLAs under Paragraph2(1)(a) for not granting an opportunity to them to lead evidence andpresent their case. The Speaker was directed to decide the disqualificationpetitions afresh by complying with the principles of natural justice. Evenin cases where the Speaker decides disqualification petitions withoutfollowing the procedure established by law, this Court normally remandsthe disqualification petitions to the Speaker. Therefore, absent exceptionalcircumstances, the Speaker is the appropriate authority to adjudicatepetitions for disqualification under the Tenth Schedule.

81. The petitioners have urged that in view of the facts andcircumstances, this Court should not remand the disqualificationproceedings to the Speaker of the Maharashtra Legislative Assembly,on the ground that he has demonstrated himselfto be incapable of actingfairly and impartially. Before addressing the petitioner’s submission, it isnecessary to refer to the status of the Speaker under the Constitution.Article 178 provides that the Legislative Assembly shall, as soon as maybe, choose two members of the Assembly to be the Speaker and DeputySpeaker. The procedure for the election of Speaker and the DeputySpeaker is generally provided by the relevant rules of the LegislativeAssembly.

82. In a parliamentary democracy, the Speaker is an officer ofthe Assembly. The Speaker performs the function of presiding over theproceedings of the House and representing the House for all intents andpurposes. In Kihoto Hollohan (supra), it was contended that theSpeaker does not represent an independent adjudicatory machinery sincethey are elected by the majority of the Assembly. Rejecting the argument,this Court emphasized that the office of the Speaker is held in high respectin parliamentary tradition. The Court held that the Speaker embodiespropriety and impartiality and that it was therefore inappropriate to expressdistrust in the office of the Speaker:

“118. It would, indeed, be unfair to the high traditions of that greatoffice to say that the investiture in it of this jurisdiction would bevitiated for violation of a basic feature of democracy. It isinappropriate to express distrust in the high office of theSpeaker, merely because some of the Speakers are alleged,or even found, to have discharged their functions not in AB

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Akeeping with the great traditions of that high office. Therobes of the Speaker do change and elevate the man inside.”

83. The petitioners have relied upon the judgment in ShrimanthBalasaheb Patil v. Speaker, Karnataka Legislative Assembly,[25]Bwhere it was observed that the Speaker does not deserve to be reposedwith public trust and confidence if they are not able to dissociate fromtheir political party and if they act contrary to the spirit of neutrality andindependence. In Shrimanth Balasaheb Patil (supra), the Speakerissued orders disqualifying certain MLAs, prohibiting them fromCcontesting elections and becoming members for the remaining term ofthe Legislative Assembly. This Court upheld the decision of the Speakeron the question of disqualification. However, it held that the Speakerdoes not have the power to specify the period of disqualification underthe Tenth Schedule. It was in view of the unconstitutional exercise ofpower by the Speaker that this Court expounded on the general principlesDthat a Speaker is expected to follow while adjudicating questions ofdisqualification.

84. A similar submission was made before this Court in the caseof Keisham Meghachandra Singh v. Hon’ble Speaker ManipurLegislative Assembly[26],where it was submitted that this Court shouldEissue a writ of quo-warranto against the appointment of an MLA as aminister when disqualifications petitions are pending. Rejecting thesubmission, this Court held as under:

“8. Shri Kapil Sibal, learned Senior Advocate appearing on behalfof the Appellant, in the Civil Appeal arising out of SLP(C) No.F18659 of 2017, has argued that the Speaker in the present casehas deliberately refused to decide the disqualification petitionsbefore him…… In these circumstances, he has exhorted us toissue a writ of quo warranto against Respondent No. 3 statingthat he has usurped a constitutional office, and to declare that hecannot do so…G

32. It is not possible to accede to Shri Sibal’s submissionthat this Court issue a writ of quo warranto quashing theappointment of the Respondent No. 3 as a minister of a cabinet 25 (2020) 2 SCC 595H26 (2020) SCC OnLine SC 55

led by a BJP government. Mrs. Madhavi Divan is right in statingthat a disqualification under the Tenth Schedule from being anMLA and consequently minister must first be decided by theexclusive authority in this behalf, namely, the Speaker of theManipur Legislative Assembly. It is also not possible to accede tothe argument of Shri Sibal that the disqualification petition bedecided by this Court in these appeals given the inaction of theSpeaker. It cannot be said that the facts in the present case aresimilar to the facts in Rajinder Singh Rana (supra). In the presentcase, the life of the legislative assembly comes to an end only inMarch, 2022 unlike in Rajinder Singh Rana (supra) where, butfor this Court deciding the disqualification petition in effect, norelief could have been given to the petitioner in that case as thelife of the legislative assembly was about to come to an end. Theonly relief that can be given in these appeals is that the Speakerof the Manipur Legislative Assembly be directed to decide thedisqualification petitions pending before him within a period offour weeks from the date on which this judgment is intimated tohim. In case no decision is forthcoming even after a period offour weeks, it will be open to any party to the proceedings toapply to this Court for further directions/reliefs in the matter.”

85. The incumbent Speaker of the Maharashtra LegislativeAssembly has been duly elected by the MLAs in terms of the procedurelaid down under the Maharashtra Assembly Rules 1960. The petitionershave referred to the decision of the Speaker to cancel the recognition ofMr. Sunil Prabhu as the Chief Whip of the Shiv Sena on 3 July 2022 toargue that the Speaker is biased and impartial. The decision of theSpeaker to cancel the recognition of Mr. Prabhu has also been challengedin the instant proceedings. Even if this Court sets aside the decision ofthe Speaker cancelling the recognition of Mr. Prabhu on merits, it wouldnot be a sufficient reason for this Court to decide the disqualificationpetitions. We are also unable to accept the alternative submission of thepetitioners to direct the Deputy Speaker to adjudicate the question ofdisqualification for the simple reason that the Maharashtra LegislativeAssembly has duly elected the Speaker, who has been entrusted withthe authority to decide disqualification petitions under the Constitution.The Deputy Speaker can perform the duties of the Speaker only whenthe office of the Speaker is vacant.[27] As observed in Kihoto Hollohan27 Article 180 of the Constitution AB

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A(supra) and Shrimanth Balasaheb Patil (supra), the Speaker is expectedto act fairly, independently, and impartially while adjudicating thedisqualification petitions under the Tenth Schedule. Ultimately, thedecision of the Speaker on the question of disqualification is subject tojudicial review. Therefore, this Court is of the opinion that the Speakerof the Maharashtra Legislative Assembly is the appropriate constitutionalBauthority to decide the question of disqualification under the TenthSchedule.

iii. Validity of the proceedings of the House between the prohibitoryconduct and the decision in the disqualification petitionsC86. In Rajendra Singh Rana (supra), a Constitution Bench ofthis Court observed that disqualification is incurred at the point when theMLA indulges in conduct prohibited under the Tenth Schedule. Thepetitioners rely on this observation to contend that the validity of theproceedings in the House during the pendency of the disqualificationpetitions depends on the outcome of the disqualification petitions. TheDpetitioners urge that though the MLAs cannot be barred from participatingin the proceedings of the House merely on the initiation of disqualificationpetitions against them, the outcome of such proceedings will be subjectto the decision of the Speaker in the pending disqualification petitions. Itis important to understand the context in which this Court decidedERajendra Singh Rana (supra) to appreciate the gamut of itsobservations.

87. A coalition Government, headed by the leader of the BSP, Ms.Mayawati, was formed in May 2002 pursuant to the elections to the 14[th]Legislative Assembly of Uttar Pradesh. On 27 August 2003, thirteenFMLAs of the BSP wrote to the Governor requesting him to invite theLeader of the Samajwadi Party to form the Government. On 4 September2003, the leader of the BSP filed disqualification petitions against thethirteen MLAs under the provisions of Paragraph 2(1)(a) of the TenthSchedule. On 6 September 2003, thirty-seven MLAs of the BSP filed aclaim before the Speaker for recognition of a split in the party. TheyGclaimed that pursuant to a meeting in Lucknow on 26 August 2003, theBSP split and that they constituted the group representing a faction whichhad arisen as a result of the split, namely the Lok Tantrik Bahujan Dal.On the very same day, the Speaker accepted the claim of a split andrecognized a separate group by the name Lok Tantrik Bahujan Dal whileHthe disqualification petitions were kept pending. Proceedings under Article

226 of the Constitution were instituted before the High Court challengingthe order of the Speaker recognizing the split. The High Court set asidethe order of the Speaker and directed the Speaker to consider thedisqualification petitions instituted against the thirteen MLAs. The appealagainst the order of the High Court was disposed by the ConstitutionBench in Rajendra Singh Rana (supra).

88. This Court held that the Speaker could not have decidedwhether a split existed de hors the disqualification petitions. The Courtconsidered the issue of the point in time when the defence of a split musthave existed. The respondents in that case contended that the defenceof a split in terms of Paragraph 3 must have existed on the day on whichthe MLAs indulged in prohibitory conduct. In response, the petitionerscontended that it is sufficient for the MLAs to prove a split in terms ofParagraph 3 as on the day when the disqualification petitions are decidedby the Speaker. It was in this context that this Court observed that theMLAs incurred disqualification when they indulged in prohibitory conductand therefore, the defence to disqualification (in this case, a split) mustalso have existed when the MLAs indulged in prohibitory conduct. Therelevant observations are extracted below:

“34. As we see it, the act of disqualification occurs on a membervoluntarily giving up his membership of a political party or at thepoint of defiance of the whip issued to him. Therefore, the actthat constitutes disqualification in terms of para 2 of the TenthSchedule is the act of giving up or defiance of the whip. The factthat a decision in that regard may be taken in the case ofvoluntary giving up, by the Speaker at a subsequent pointof time cannot and does not postpone the incurring ofdisqualification by the act of the legislator. Similarly, the factthat the party could condone the defiance of a whip within 15days or that the Speaker takes the decision only thereafter inthose cases, cannot also pitch the time of disqualification asanything other than the point at which the whip is defied. Thereforein the background of the object sought to be achieved by the Fifty-second Amendment of the Constitution and on a true understandingof para 2 of the Tenth Schedule, with reference to the otherparagraphs of the Tenth Schedule, the position that emergesis that the Speaker has to decide the question ofdisqualification with reference to the date on which the AB

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Amember voluntarily gives up his membership or defies thewhip. It is really a decision ex post facto. The fact that interms of para 6 a decision on the question has to be taken by theSpeaker or the Chairman, cannot lead to a conclusion that thequestion has to be determined only with reference to the date ofthe decision of the Speaker. An interpretation of that nature wouldBleave the disqualification to an indeterminate point of time and tothe whims of the decision-making authority. The same woulddefeat the very object of enacting the law. Such an interpretationshould be avoided to the extent possible. We are, therefore, of theview that the contention that (sic it is) only on a decision of theCSpeaker that the disqualification is incurred, cannot be accepted.This would mean that what the learned Chief Justice has calledthe snowballing effect, will also have to be ignored and the questionwill have to be decided with reference to the date on which themembership of the legislature party is alleged to have beenvoluntarily given up.”D

89. The observations that are sought to be relied upon by thepetitioners were made in the context of deciding the relevant point oftime at which the defence to disqualification must have existed.

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E90. In Kuldeep Bishnoi (supra), five MLAs from Haryana JanhitCongress wrote to the Speaker of their intention to merge with the INCwhich formed the Government in Haryana. The Speaker accepted themerger. Disqualification petitions under Paragraph 2(1)(a) of the TenthSchedule were instituted. The Speaker incessantly adjourned theFproceedings and did not decide on the disqualification petitions for morethan seven months. One of the orders of adjournment was challengedbefore the High Court. The High Court directed the Speaker to decidethe petitions within four months, stayed the order recognizing the merger,and declared the five MLAs to be unattached members. The High Courtdirected that the five MLAs would neither be treated as a part of theGINC nor the Haryana Janhit Congress, and they would only have a rightto attend the session. On appeal, a two-Judge Bench of this Court setaside the direction declaring the five MLAs as unattached members. InKuldeep Bishnoi (supra), the issue before this Court was whether theHigh Court could have passed an interim order declaring members ofthe House as unattached members when disqualification petitions wereH

pending against them. This Court answered in the negative. It observedthat the MLAs were entitled to function without any restrictions. ThisCourt in Kuldeep Bishnoi (supra) did not address the argument ofwhether the outcome of the proceedings of the House in the periodintervening the prohibitory act and decision in the disqualification petition,would be subject to the decision. Thus, the contention that has beenraised by the petitioners needs to be considered afresh by this Court.

91. Article 191(2) provides that a person shall be disqualified forbeing a member of the Legislative Assembly if they are so disqualifiedunder the Tenth Schedule. Article 190(3) stipulates that if an MLA incursadisqualification under the provisions of Article 191(2) read with TenthSchedule, their seat shall thereupon become vacant:

“190. […]

(3) If a member of a House of the Legislature of a State –

(a) becomes subject to any of the disqualifications mentioned inclause (1) or clause (2) of Article 191; or (b) resigns his seat by writing under his hand addressed to theSpeaker or the Chairman, as the case may be, and his resignationis accepted by the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant”

The term ‘thereupon’ denotes that the seat becomes vacant onlyfrom such date when the Speaker decides the disqualification petition.An MLA has the right to participate in the proceedings of the Houseuntil they are disqualified.[28]

92. Articles 189(2) and 100(2) (the corresponding provisions forParliament) stipulate that the validity of any proceedings of thelegislature shall not be questioned on the ground that it was discoveredsubsequently that a legislator who was not entitled to vote or sit, tookpart in the proceedings. Article 189(2) is extracted below:

“(2) A House of the Legislature of the State shall have power toact notwithstanding any vacancy in the membership thereof, andany proceedings in the Legislature of a State shall be validnotwithstanding that it was discovered subsequently that some 28 See Shivraj Singh Chouhan (supra) and Pratap Gouda Patil (supra) where this Courtobserved that MLAs will be reflected in the strength of the House until they aredisqualified and will have the right to participate in the proceedings.

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Aperson who was not entitled so to do sat or voted or otherwisetook part in the proceedings.”

The provisions of Article 189(2) will have no bearing on thedetermination of this issue because members of the House lose theirright to participate in the proceedings of the House only upon theirBdisqualification. The decision of the Speaker does not relate back to thedate when the MLA indulged in prohibitory conduct. The decision of theSpeaker and the consequences of disqualification are prospective.

93. Article 189(2) would only apply where it is subsequentlydiscovered that an MLA was not entitled to have voted. That situationCdoes not arise here. Therefore, it was not necessary for the respondentsto take recourse to Article 189(2). The proceedings of the House cannotbe subject to the decision in the disqualification petitions when thedecision is prospective. Moreover, the interpretation advanced by thepetitioners would render the parliamentary system of governanceunworkable. Parliament undertakes innumerable functions on the floorDof the House, including passing legislations and approving the annualbudget. These actions of the legislators are irrevocable except inaccordance with law. The constitutional sanctity of the proceedings inParliament or the state legislatures cannot be set in a state of uncertainty.To allow the validity of such proceedings to be subject to a future decisionEwould lead to chaos. For the above reasons, the action of the House inelecting the Speaker, Mr. Rahul Narwekar, on 3 July 2022 is not invalidmerely because some MLAs who participated in the election faceddisqualification proceedings. We accordingly answer the question referredto us as noted in Paragraphs 32(d) and 32(e) of this judgment.

Fiv. The power to appoint the Whip and the Leader of the LegislatureParty

94. The respondents have challenged the communication of theDeputy Speaker dated 21 June 2022 appointing Mr. Ajay Choudhari asthe Leader of the SSLP. The petitioners have challenged theGcommunication of the Speaker dated 3 July 2022 by which (i) theappointment of Mr. Ajay Choudhari was cancelled and Mr. Shinde wasappointed as the Leader of the SSLP; and (ii) Mr. Gogawale wasappointed as the Chief Whip in place of Mr. Sunil Prabhu. Beforeadjudicating on the validity of the impugned communications, it isnecessary to answer the preliminary objection that the courts cannot H

inquire into communications recognizing the Whip and the Leader of alegislature party because of the bar under Article 212 of the Constitution.

a. The bar under Article 212: justiciability of legislativeproceedings

95. Article 212(1) stipulates that the Court shall not inquire intothe validity of the proceedings of the Legislature of a State on the groundof any alleged irregularity of procedure:

“212. Courts not to inquire into proceedings of the Legislature.-(1) The validity of any proceedings in the Legislature of a Stateshall not be called in question on the ground of any allegedirregularity of procedure.”

96. This Court has on earlier occasions construed the scope ofthe restriction on judicial review of proceedings of the Legislature underArticle 212 (and the corresponding provision for Parliament, Article 122).In Special Reference No. 1 of 1964 (Powers, Privileges andImmunities of State Legislatures),[29] a seven-Judge Bench observedthat Article 212 only restricts judicial review on the ground of ‘irregularityof procedure’ and that proceedings of the legislature can still bechallenged if the ‘procedure is illegal and unconstitutional.’ In Raja RamPal (supra), a Constitution Bench held that legislative proceedings canbe challenged on the grounds of ‘substantive illegality orunconstitutionality’. In Justice KS Puttaswamy v. Union of India(Aadhar 5J),[30] one of the issues before this Court was whether Article212 precluded judicial review of the Speaker’s authorization of a MoneyBill. Sikri, J. writing for the majority observed that Article 212 only limitedchallenges on the ground of ‘irregularity of procedure’ and not ‘substantiveillegality’. One of us (D Y Chandrachud, J.) observed in his dissentingopinion that Article 212 does not preclude judicial review of proceedingsof a Legislature if the decision of the Speaker suffers from “illegality ora violation of constitutional provisions.” In Rojer Mathew v. SouthIndian Bank Ltd.,[31 ]this Court observed that a “gross violation of theconstitutional scheme” cannot be considered a procedural irregularity.This Court has consistently held that a substantive illegality or a violationof a constitutional provision is distinct from a mere irregularity ofprocedure and is amenable to judicial review.

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A97. Similar provisions barring Courts from interfering on the groundof irregularity of procedure occur in the Code of Criminal Procedure1973.[32] Section 465 of the CrPC provides that a finding or a sentencecannot be reversed solely on the ground of irregularity of proceedingsunless, in the opinion of the Court, there has been a failure of justice.[33]The concept of irregularity of procedure is also common in serviceBjurisprudence. In the context of regularisation of employment, this Courthas held that while employees who were irregularly appointed can beregularised, those appointed illegally cannot. In State of UP v. DeshRaj,[34 ]this Court held that “an appointment which was made throwing allconstitutional obligations and statutory rules to the winds would renderCthe same illegal whereas irregularity presupposes substantial compliancewith the rules.” Thus, the issue of whether the action violating a procedurewould render the proceedings irregular or illegal is specific to context ofeach case. It depends on the purpose of the prescribed procedure andthe consequence of non-compliance with such procedure. This is trueacross diverse areas of law.D

98. The House of the People and the Legislative Assemblies ofStates are constituted of members directly elected by the electorate.The candidate who secures the highest number of votes is returned tothe Assembly. The political party which reaches the half-way mark formsthe government. A coalition of political parties may form the governmentEif no single political party reaches the half-way mark. Articles 75 and164 provide that the Council of Ministers is collectively responsible tothe House of the People and Legislative Assembly of the Staterespectively. The legislators who are directly elected by the people havea duty to hold the executive accountable on the floor of the House.FLegislative procedures serve two objectives - first, they enabledeliberation and discussion on the floor of the House to hold the executiveaccountable, and such deliberation also produces better constitutionaloutcomes; and second, they create a system to place a check on theexercise of power by the incumbent government. Certain procedural requirements prescribed by the Constitution safeguard constitutionalGvalues. This is reflected in Article 368 which prescribes a special majorityto amend certain constitutional provisions, which according to themembers of the Constituent Assembly hold a higher constitutional (and 32 "CrPC”

33 See Pradeep S Wodeyar v. State of Karnataka, 2021 SCC OnLine SC 1140H34 (2007) 1 SCC 257

democratic) value. Certain other legislative procedures further democraticprocesses and accountability, and prevent the concentration of power inthe hands of the incumbent government. Article 212 cannot be interpretedas placing all procedural infringements beyond the pale of judicial review.Such an interpretation would completely disregard the importance oflegislative processes in a constitutional democracy.

99. The distinction between irregular procedure and illegalprocedure must be drawn based on the nature of the procedure whichwas violated, and the impact of such a violation on democratic ideals.An infringement of a procedure would be irregular if the purpose ofsuch procedure is unrelated to democratic ideals and its violation doesnot go to the root of democratic processes.

100. The observations of this Court on the interpretation of Article212 highlighted above do not make a distinction between irregularityand illegality solely based on the source of law. The distinction is notbased on whether the procedure is entrenched in the Constitution butwhether it is crucial for the sustenance of democracy. A violation of aprocedure that fulfils the twin objectives highlighted above and which isnecessary for the sustenance of parliamentary democracy would renderthe action illegal. On the other hand, a violation of a procedure thatestablishes orderliness may only be irregular.

101. In Ramdas Athawale v. Union of India,[35] a member of theLok Sabha challenged the validity of the proceedings in the Lok Sabhaon the ground that the President had not addressed both Houses ofParliament under Article 87 when the session commenced on 29 January2004 which was the first session of the year. The Speaker ruled that thesitting on 29 January 2004 could not be deemed to be the first session ofthe year merely because it was the first session of the calendar year,and that at best, it could be treated as the second part of the fourteenthsession of the Thirteenth Lok Sabha. This Court held that in view of thebar under Article 122, the issue of whether the sitting on 29 January2004 was a new session or a second part of the same session was a“matter relating purely to the procedure of Parliament”:

“37. […] The Speaker’s decision adjourning the House sine dieon 23-12-2003 and direction to resume its sittings in part twoessentially relates to proceedings in Parliament and is procedural 35 (2010) 4 SCC 1

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Ain nature. The business transacted and the validity of proceedingsafter the resumption of its sittings pursuant to the directions of theSpeaker cannot be inquired into by the courts.”

The observations in Ramdas Athawale (supra) that it was purelya matter of procedure cannot be interpreted to mean that proceduralBinfringements are not subject to judicial review. This Court observedthat the procedure that was alleged to have been violated would onlyrender the proceedings irregular and that it would not vitiate theproceedings themselves. The observations in Ramdas Athawale (supra)must be read in light of our analysis above that procedural infringementswould vitiate the proceedings based on their purpose and the impact ofCtheir infringement on the democratic functioning of Parliament. b. The power to appoint the Whip and the Leader of thelegislature party

I. ‘Political party’ and ‘legislature party’ are distinguishableconcepts.D102. Paragraph 1(b) of the Tenth Schedule defines “legislatureparty” as follows:

“legislature party, in relation to a member of a House belonging toany political party in accordance with the provisions of paragraph2 or paragraph 4, means the group consisting of all the membersEof that House for the time being belonging to that political party inaccordance with the same provisions”

Paragraph 1(c) defines “original political party” as the politicalparty to which the member belongs for the purposes of Paragraph 2(1).Paragraph 2 stipulates that a member belonging to ‘any political party’Fshall be disqualified from being a member of the House if they havevoluntarily given up membership of such political party, or if they votecontrary to the direction issued by the political party to which they belongor by any person or authority authorised by it. A member who has votedcontrary to the direction of the political party would not incurGdisqualification if such a vote is condoned by the political party or if theprior permission of the political party is secured:

“2. Disqualification on ground of defection.—(1) Subject to theprovisions of 3 [paragraphs 4 and 5], a member of a Housebelonging to any political party shall be disqualified for being amember of the House—H

(a) if he has voluntarily given up his membership of such politicalparty; or (b) if he votes or abstains from voting in such House contrary toany direction issued by the political party to which he belongsor by any person or authority authorised by it in this behalf,without obtaining, in either case, the prior permission of such politicalparty, person or authority and such voting or abstention has notbeen condoned by such political party, person or authority withinfifteen days from the date of such voting or abstention.

Explanation.—For the purposes of this sub-paragraph,— (a) anelected member of a House shall be deemed to belong to thepolitical party, if any, by which he was set up as a candidate forelection as such member;”

103. The petitioners contend that the Whip and the Leader mustbe appointed by the political party because Paragraph 2(1)(b) requiresthat the direction to vote in a particular manner in the House must befrom the political party or a person authorised by it, meaning the politicalparty. The respondents submit that the distinction between political partyand legislature party is artificial and that they are intertwined concepts.For this purpose, reference was made to Paragraph 4(2) of the TenthSchedule and Paragraph 6A of the Symbols Order. The term ‘politicalparty’ is not defined in the Tenth Schedule. However, the explanation toParagraph 2 creates a deeming fiction while referring to political parties.The explanation to Paragraph 2 provides that an elected member of aHouse shall be deemed to belong to the political party by which theywere set up as a candidate for election. Paragraph 4 creates anotherdeeming fiction. The provision provides that if the “original political party”merges with another political party and they become members of suchother political party or a new political party, then such other politicalparty or the new political party shall be deemed to be the political partyof the member for the purposes of Paragraph 2. To illustrate, Ms. Zbelonging to party A shall not be disqualified for voting against the directionof party A if party A merges with party B to form party C or if party A issubsumed by party B. This is because for the purposes of Tenth Schedule,Party B or Party C shall be deemed to be their original political party.Paragraph 4(2) stipulates that a merger is deemed to have taken place AB

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Aonly if not less than two-third of the members of the legislature partyhave agreed to the merger:

“4. […]

(2) For the purposes of sub-paragraph (1) of this paragraph, themerger of the original political party of a member of a House shallBbe deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned haveagreed to such merger.”

Paragraph 3 which was omitted by the Constitution (Ninety-firstAmendment) Act 2003 stipulated that a member would not be disqualifiedCfor their prohibitory conduct if there is a split in the original political partyand the legislature party.

104. Paragraph 6A of the Symbols Order lays down conditionsfor the recognition of a political party as a recognized State party for thepurposes of the Symbols Order. The provision provides that the politicalDparty must have secured a certain percentage of votes and should havereturned a certain number of candidates to the assembly to be recognizedas a State party:

“6A. Conditions for recognition as a State Party – A political partyshall be eligible for recognition as a State party in a State, if, andEonly if, any of the following conditions is fulfilled:

(i) At the last general election to the Legislative Assembly of theState, the candidates set up by the party have secured not lessthan six percent of the total valid votes polled in the State; and, inaddition, the party has returned at least two members to theFLegislative Assembly of that State at such general election; or

(ii) At the last general election to the House of the People fromthat State, the candidates set up by the party have secured notless than six percent of the total valid votes polled in the State;and, in addition, the party has returned at least one member to theGHouse of the People from that State at such general election; or

(iii) At the last general election to the Legislative Assembly of theState, the party has won at least three percent of the total numberof seats in the Legislative Assembly, (any fraction exceeding halfbeing counted as one), or at least three seats in the Assembly,Hwhichever is more; or

(iv) At the last general election to the House of the People fromthe State, the party has returned at least one member to the Houseof the People for every 25 members or any fraction thereof allottedto that State;] or

(v) At the last general election to the House of the People fromthe State, or at the last general election to the Legislative Assemblyof the State, the candidates set up by the Party have secured notless than eight percent of the total valid votes polled in the State.”

105. ‘Political party’ and ‘legislature party’ cannot be conflated.The contention of the respondents that political party and legislatureparty is inextricably intertwined is erroneous for the following reasons:

a.Parliament in its constituent capacity was conscious of thenecessity of not allowing anti-defection laws to stifle intra-party dissent and the freedom of expression of legislators.It was with this objective that the defences of merger, andsplit (which was later omitted) were introduced. The TenthSchedule confers legitimacy to the actions of the legislatorswhich would otherwise lead to disqualification if asubstantial number of legislators (two-third in the case ofa merger,and one-third in the case of the erstwhile provisionfor a split) disagree with the political party. The TenthSchedule recognizes the independent existence of thelegislature party to the limited extent of presenting a defenceto the actions of the legislators which would otherwise haveamounted to defection; and b.Section 29A of the Representation of the People Act 1951requires an association of individuals calling itself a politicalparty to be registered with the ECI. The party need nothave returned candidates to the assembly to be registeredas a political party. Under the Symbols Order, a politicalparty receives recognition as a State Party or a NationalParty based on the total number of candidates returned tothe assembly by the political party, and/or the totalpercentage of votes secured in the election. The purposeof the requirement under the Symbols Order is to identifywhether the political party has a substantial presence in theelectoral fray to freeze an electoral symbol for that party.The Symbols Order does not refer to an association of A

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Alegislators de hors the political party like the Tenth Schedule.It recognises a ‘legislator’ and a ‘political party.’ Thus, thereference to provisions of the Symbols Order to argue thatthe concepts of political party and legislature party areintertwined does not hold merit because the concept oflegislature party is not recognized by the Symbols Order.

B

II. Literal and purposive interpretation of the provisions of theTenth Schedule, the 1986 Rules, and the Act of 1956

106. Rule 2(f) of the 1986 Rules defines ‘leader’ in relation to alegislature party as a member of the party chosen by it as its leader andCincludes any other member of the party authorised by the party to act inthe absence of the leader. Rule 3(1) states that the leader of a legislatureparty must furnish the following within thirty days of forming thelegislature party:

a.A statement in writing containing the names of members ofDthe legislature party with the particulars of the members asspecified in Form I, and the names and designations of themembers who have been authorised by it for communicatingwith the Speaker for the purposes of these rules; b.A copy of the rules and regulations of the political party;and E

c.A copy of the rules and regulations of the legislature party,if it has separate rules.

Rule 3(1) is extracted below:

“3. Information to be furnished by leader of a legislatureFparty.—

(1) The leader of each legislature party (other than a legislatureparty consisting of only one member) shall within thirty daysfrom the date of commencement of these rules or, where suchlegislature party is formed after such date within thirty daysGfrom the date of its formation, or, in either case, within suchfurther period as the Speaker may for sufficient cause allow,furnish the following to the Speaker, namely :—

(a) a statement (in writing) containing the names of membersof such legislature party together with other particulars H

regarding such members as in Form- I, and the names anddesignations of the members of such party who have beenauthorised by it for communicating with the Speaker forpurposes of these rules ; (b) a copy of the rules and regulations (whether known assuch or as Constitution or by any other name) of the politicalparty concerned ; and

(c) where such legislature party has any separate set of rulesand regulations (whether known as such or as Constitution orby any other name), also a copy of such rules and regulations.

[...]”

107. Rule 3(4) stipulates that the Leader of the legislature partymust furnish the updated information if there has been a change in theinformation furnished under Rule 3(1). Rule 3(5) states that if a membervotes or abstains from voting in the assembly contrary to the direction ofthe political party without the prior permission of the political party, theLeader of the legislature Party may within thirty days of such voting orabstention communicate to the Speaker as to whether such voting orabstention has been condoned by the political party. The rule also stipulatesthat the Leader must inform the Speaker even if they voted contrary tothe direction of the political party. The 1986 Rules neither use nor definethe term ‘Whip’.

108. The term ‘Whip’ is defined in the Act of 1956. Section 2 ofthe Act of 1956 provides that an MLA shall not be disqualified for holdingthe offices stipulated in Schedule I. Clause 23 of Schedule I mentionsthe offices of Chief Whip or Whip in the Maharashtra State Legislature.The explanation to this clause defines a Whip as follows:

“Explanation.- (1) The expression “Chief Whip” or “Whip”, inrelation to the Maharashtra Legislative Assembly, means thatMember of the House who is, for the time being, declared by theparty forming the Government to be the Chief Whip or Whip inthat House and recognized as such by the Speaker; and includesa member of the House, who, is for the time being, declared assuch by the party having at-least ten percent of the total numberof the House and recognized as such by the Speaker; and AB

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A(2) The expression “Chief Whip” or “whip”, in relation to theMaharashtra Legislative Council, means that member of the Housewho is, for the time being, declared by the party forming theGovernment to be the Chief Whip or Whip in the House andrecognized as such by the Chairman; and includes a member ofthe House, who, is for the time being, declared as such by theBparty having at-least ten percent of the total members of the Houseand recognized as such by the Chairman.”

109. On a literal interpretation of the provisions of the TenthSchedule, the 1986 Rules and the Act of 1956, the direction to vote orabstain from voting arises from the political party and not the legislatureCparty for the following reasons:

a.Paragraph 2(1)(b) of the Tenth Schedule provides that thedirection to vote or abstain from voting must be issued bythe political party or by “any person or authority authorisedby it,” with the word ‘it’ referring to the political party. TheDprovision states that prior permission must have beenreceived from the political party if the member wants tovote contrary to the direction issued, and the political partymust condone such action within fifteen days. Theprovisions of the Tenth Schedule stipulate in unequivocalEterms that the direction must come from the political partyand not the legislature party. The distinction between politicalparty and legislature party is made in the definition clausein Paragraph 1. There are no two ways about it. The TenthSchedule would become unworkable if the term ‘politicalparty’ is read as the ‘legislature party.’ A clear demarcationFis made between political party and legislature party for thepurpose of a merger under Paragraph 4, which stipulatesthat two-thirds of the members of the legislature partymust have agreed to a merger of the original politicalparty before such a merger can be deemed to have takenGplace. To read the term ‘political party’ as ‘legislature party’would be contrary to the plain language of the TenthSchedule; b.It is an accepted position that the Whip communicates thedirections of the party to its members. The phrase ‘Whip’is neither used in the Tenth Schedule nor in the 1986 Rules.H

The phrase finds a mention in the Act of 1956 as one of theoffices that would not be covered within the meaning of‘office of profit.’ The explanation to Clause 23 of ScheduleI in the Act of 1956 states that the Chief Whip is declaredby the party forming the Government. The reference to‘party’ in the explanation clause means political party andnot legislature party because the term ‘party’ is used todepict political party in common parlance; and

c.The respondents urge that the Whip is chosen by thelegislature party because Rule 3(1)(a) of the 1986 Rulesprovides that the Leader shall inform the Speaker of thenames and designations of the members who have beenauthorised by it for communicating with the Speaker forthe purposes of these rules. This argument is erroneous.The phrase ‘any other member who has been authorised tocommunicate with the Speaker’ in Rule 3(1)(a) must beread with the definition of ‘Leader’ under Rule 2(f), whichincludes such other member authorised to act in the absenceof the Leader or discharge the functions of the Leader forthe purpose of the Rules. When read together, it is evidentthat Rule 3(1)(a) refers to the furnishing of informationabout members who have been authorised to act as theLeader in the absence of the Leader themselves. The Whipinteracts with the members of the legislature party tocommunicate the direction(s) of the political party. Rule3(5) which prescribes that the Leader has to inform theSpeaker if the political party has condoned the prohibitoryactions of the members of the legislature party clearlyestablishes that it is only the Leader who communicateswith the Speaker for the purposes of the 1986 Rules. Thisis all the more evident since Rule 3(5) requires the Leaderto inform the Speaker in a situation where the Leader votesor abstains from voting contrary to the direction of thepolitical party. Under the 1986 Rules, the Whip is not thedesignated authority to file disqualification petitions. Rule 6provides that a petition for disqualification can be filed byany member of the Maharashtra Legislative Assembly. Theargument of the respondents that the legislature partyappoints the Whip fails, so far as it is based on the provisionsof the 1986 Rules discussed in this paragraph.

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A110. In Mayawati (supra), the appellant issued a direction to allthe MLAs of the BSP directing them to vote against the motion of noconfidence moved by the BJP. Twelve MLAs belonging to the BSPvoted in favour of the no confidence motion. The appellant filed petitionsfor disqualification against these twelve MLAs for the violation ofParagraphs 2(1)(a) and 2(1)(b). The Speaker dismissed theBdisqualification petitions. One of the findings of the Speaker was that itwas not proved that the appellant was authorised to issue the directionon behalf of the political party. The order of the Speaker was challengedbefore this Court. It was submitted that ‘political party’ in Paragraph2(1)(b) must be read as ‘political party in the House’, meaning theClegislature party. Srinivasan, J. in his separate opinion rejected thisargument and upheld the order of the Speaker by observing that therewas no material to indicate that the appellant was authorised by the BSPto issue the direction. In this context, Srinivasan, J. held that ‘politicalparty’ cannot be read as ‘legislature party’ for the following reasons:

Da.The phrase ‘political party’ in Paragraph 2(1)(b) cannot beinterpreted to mean legislative party while the same phrasein Paragraph 2(1)(a) retains its original meaning; b.Such an interpretation would render explanation(a) toParagraph 2(1) otiose because a legislature party cannotEset up a person as a candidate for election;

c.Disqualification from membership of the assembly is aserious consequence. Such a consequence can only ensuefrom voting contrary to the direction of the political party;and F

d.In Kihoto Hollohan (supra), it was held that to balancethe competing considerations of the anti-defection law andintra-party dissent, a direction to vote (or abstain fromvoting) can only be given if the vote would alter the statusof the government formed or if it is on a policy on whichGthe political party that set up the candidate went to polls on.Only the political party and not the legislature party canissue directions concerning issues of this nature.

111. Hence, the plain meaning of the provisions of the TenthSchedule, 1986 Rules, and Act of 1956 indicate that the Whip and theLeader must be appointed by the political party.H

112. The Tenth Schedule was introduced to thwart the growingtendency of legislators to shift allegiance to another political party afterbeing elected on the ticket of a certain political party. The defection ofMLAs would alter the composition of the House, and in most caseswould lead to the toppling of the Government. Moral and democraticprinciples are compromised when a legislator shifts allegiance after theelectorate votes for that legislator on the belief that they represent theideology of a certain political party. The Tenth Schedule was introduced,as the Statement of Objects and Reasons of the Constitution (FiftySecond Amendment) Bill 1985 states, to combat the evil of politicaldefections which was “likely to undermine the very foundations of ourdemocracy and the principles which sustain it.”[36] In Kihoto Hollohan(supra), SR Bommai, and Kuldip Nayar v. Union of India[37 ]this Courtrecognized that political parties are central to the Indian democratic set-up, and that the Tenth Schedule seeks to curb defections from politicalparties. When the anti-defection law seeks to curb defections from apolitical party, it is only a logical corollary to recognize that the power toappoint a Whip vests with the political party.

113. To hold that it is the legislature party which appoints theWhip would be to sever the figurative umbilical cord which connects amember of the House to the political party. It would mean that legislatorscould rely on the political party for the purpose of setting them up forelection, that their campaign would be based on the strengths (andweaknesses) of the political party and its promises and policies, thatthey could appeal to the voters on the basis of their affiliation with theparty, but that they can later disconnect themselves entirely from thatvery party and be able to function as a group of MLAs which no longerowes even a hint of allegiance to the political party. This is not the systemof governance that is envisaged by the Constitution. In fact, the TenthSchedule guards against precisely this outcome.

114. That a Whip be appointed by the political party is crucial forthe sustenance of the Tenth Schedule. The entire structure of the TenthSchedule which is built on political parties would crumble if thisrequirement is not complied with. It would render the provisions of the 36 Statement of Objects and Reasons appended to the Constitution (Fifty-secondAmendment) Bill, 1985 (Bill No. 22 of 1985) which was enacted as the Constitution(Fifty-second Amendment) Act, 198537 (2006) 7 SCC 1

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ATenth Schedule otiose and have wider ramifications for the democraticfabric of this country. Thus, the Courts cannot be excluded by Article212 from inquiring into the validity of the action of the Speaker recognizingthe Whip.

115. On 25 November 2019, a meeting with the newly electedBMLAs belonging to the Shiv Sena was chaired by Mr. Uddhav Thackeray,in his capacity as the Shiv Sena Party President (‘Paksh Pramukh’).The resolution notes that the MLAs unanimously resolved that all decisionsin the meeting would be taken by Mr. Thackeray. A resolution was issuedappointing Mr. Eknath Shinde as the Group Leader of SSLP and Mr.Sunil Prabhu as the Chief Whip. On 21 June 2022, some members of theCSSLP held a meeting under the chairmanship of the president of the ShivSena, Mr. Uddhav Thackeray. In the meeting, it was resolved to removeMr. Shinde as the Group Leader of the SSLP, and appoint Mr. AjayChoudari. The resolution was signed by Mr. Uddhav Thackeray in hiscapacity as the party president on the official letterhead of the office ofDthe SSLP.

116. It is the case of the respondents that on the same day, that is,21 June 2022, a separate meeting of the “real” SSLP was held. At thismeeting, thirty-four members of the SSLP issued a resolution (i)reaffirming that Mr. Shinde who was appointed as the Leader of theESSLP on 31 October 2019 continued to be Leader; and (ii) cancellingthe appointment of Mr. Sunil Prabhu as the Chief Whip and appointingMr. Gogawale in his place. The resolution inter alia stated that (i) therewas enormous discontent amongst the cadre and party workers of ShivSena for breaking the pre-poll alliance with BJP and forming theGovernment with INC and NCP; and (ii) the leaders of the Shiv SenaFhad compromised on the principles of the Shiv Sena party to attain power.The petitioners contend that this letter was issued on 22 June 2022 andhas been back dated as 21 June 2022.

117. By an order dated 21 June 2022, the Deputy Speaker (whowas at the time discharging the functions of the Speaker) approved theGrequest to appoint Mr. Ajay Choudari as the Leader of SSLP. Meanwhile,on 3 July 2022, the election for the post of Speaker was held. Mr. RahulNarwekar, the candidate of BJP was elected as the Speaker. On thesame day, the Speaker took cognizance of the resolution passed by thirty-four MLAs belonging to the faction led by Mr. Shinde and appointed Mr.HShinde as the Leader and Mr. Gogawale as the Chief Whip. The Deputy Secretary of the Maharashtra Legislative Assembly issued acommunication that the Speaker has recognised a new Whip and a newLeader of the SSLP:

“With reference to your abovementioned letter, I have been orderedto inform you that you have been replaced from the post of Leaderof Legislative Party by nominating the name of Shri AjayChoudhari. In this regard, you have raised the objection byaddressing the letter on 22[nd] June. In this regard, after deliberationon provision in the law, Hon’ble Speaker, Maharashtra LegislativeAssembly has cancelled the approval granted to Shri AjayChoudhari as leader, ShivSena Legislature Party and approves &recognizes the nomination of Shri Eknath Shinde as Leader,ShivSena Legislative Party as per the letter dated 31 October2019. Similarly, the proposal to nominate Shri Sunil Prabhu asChief Whip of ShivSena Legislative Party is to be cancelled andto recognize the nomination of Shri Bharat Gogavale as ChiefWhip of ShivSena Legislature Party has been approved andrecorded in the registry.”

118. It is important to note that the above communication (i)recognizes that the faction led by Mr. Shinde objected to thecommunication of the Deputy Speaker replacing Mr. Shinde as the Leaderby a resolution dated 22 June 2022; and (ii) appreciates the objection ofthe faction led by Mr. Shinde to the appointment of Mr. Choudhari to therole of Leader. We will proceed on the assumption that the objection bythe faction led by Mr. Shinde was received by the Speaker on 22 June2022 since the communication of the Speaker notes this date.

119. The Speaker was aware of the emergence of two factions inthe legislature party on 3 July 2022 when he appointed a new Whip anda new Leader because the resolution of the respondents specificallymentions that a “split” had occurred due to prevailing dissatisfaction insome MLAs of the Shiv Sena. Further, the fact that there were tworesolutions appointing two different Whips and two different Leaderswould no doubt have resulted in the Speaker inferring that there weretwo factions of the Shiv Sena. The Speaker on taking cognizance of theresolution passed by the faction of SSLP led by Mr. Shinde, did notattempt to identify which of the two persons who were nominated (Mr.Prabhu or Mr. Gogawale) were authorised by the political party. In acontentious situation such as this, the Speaker should have conducted an ABC

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Aindependent inquiry based on the rules and regulations of the politicalparty to identify the Whip authorised by the Shiv Sena Political Party.For the reasons detailed in the preceding paragraphs, the Speaker mustonly recognize the Whip appointed by the political party. The decision ofthe Speaker recognizing Mr. Gogawale as the Chief Whip of the ShivSena is illegal because the recognition was based on the resolution of aBfaction of the SSLP without undertaking an exercise to determine if itwas the decision of the political party.

120. Rule 2(f) defines ‘Leader’ in relation to the legislature partyas a member of the party chosen by it asits leader. The term ‘party’ isambiguous. It is not preceded by either ‘political’ or ‘legislature’. It mayCbe interpreted to mean ‘legislature party’ because the definition clausedefines a Leader in relation to ‘legislature party’ and then proceeds touse the phrase ‘party.’ Alternatively, it could also take the meaning of‘political party’ because ‘party’ in common parlance means ‘politicalparty.’ D

121. Under Paragraph 8(1)(b) of the Tenth Schedule and Rule3(5) of the 1986 Rules, the Leader of the legislature party is required toinform the Speaker if the political party condoned the prohibitory actunder Paragraph 2(1)(b) of the Tenth Schedule. Thus, the Leader of thelegislature party is the link between the political party and the legislativeEassembly. If the interpretation of the respondents is accepted, the actionof the leader condoning an MLA’s prohibitory conduct would not reflectthe voice of the political party and would instead reflect the voice of thelegislature party. This would be contrary to the manner in which theTenth Schedule is intended to operate. The manner in which the TenthSchedule would then operate would not effectively prevent or provide aFsolution to the constitutional sin of defection.

122. On 21 June 2022, there was no material on record before theDeputy Speaker for him to doubt that the resolution of SSLP dated 21June 2022 (appointing Mr. Ajay Choudhari as the Leader of the SSLP)was de hors the political party, or that two factions of the party hadGemerged. The resolution was signed by Mr. Thackeray in his capacityas the party president much like the resolution appointing the Whip andLeader in 2019. This makes it evident that Mr. Thackeray issued thecommunication on behalf of the political party. Thus, the decision of theDeputy Speaker recognising Mr. Ajay Choudhari as the Whip in placeof Mr. Eknath Shinde is valid. H

123. However, the resolution passed by SSLP on 22 June 2022brought to the attention of the Speaker that it was passed by a faction ofthe SSLP. Thus, the Speaker by recognising the action of a faction ofthe SSLP without determining whether they represented the will of thepolitical party acted contrary to the provisions of the Tenth Schedule, the1986 Rules, and the Act of 1956. The decision of the Speaker recognisingMr. Shinde as the Leader is illegal.

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124. The Speaker must recognize the Whip and the Leader whoare duly authorised by the political party with reference to the provisionsof the party constitution, after conducting an enquiry in this regard and inkeeping with the principles discussed in this judgement.

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v. Deciding who the “real” Shiv Sena is

125. Time and again, the parties before this Court asserted thatthey were the “real” Shiv Sena. In cases such as the present one, theanswer to this question will have implications in the disqualificationproceedings under the Tenth Schedule as well as proceedings for theallotment of a symbol under the Symbols Order.

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126. The petitioners argue that this Court ought to lay down aconstitutional sequence in order to harmonise proceedings fordisqualification under the Tenth Schedule, the notice of intention to movea resolution for the removal of the Speaker under Article 179(c) of theConstitution, and the allotment of an election symbol under Paragraph15 of the Symbols Order.

EF

127. Since we have referred the issues arising from the issuanceof a notice of intention to move a resolution for the removal of the Speakerunder Article 179(c) to a larger Bench, it only remains for us to considerthe manner in which the remaining two proceedings ought to beharmonized.

a. The purpose of the Tenth Schedule and the effect ofdisqualification

128. As discussed extensively in this judgement as well as in otherjudgements of this Court, the purpose of the Tenth Schedule is toGdisincentivize and penalize the constitutional sin of defection.[38] A violationof the anti-defection law results in a member of the House being:

a.Disqualified from the House;[39]

38 Kihoto Hollohan (surpa); Nabam Rebia (supra)

39 Paragraph 2, Tenth Schedule, Constitution of India 1950

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Ab.Disqualified from holding any remunerative political postfor the duration of the period commencing from the date oftheir disqualification till the date on which the term of theiroffice as a member of the House would expire or till thedate on which they contest election to a House and aredeclared elected, whichever is earlier;[40] andB

c.Disqualified from being appointed as a Minister for theduration of the period commencing from the date of theirdisqualification till the date on which the term of their officeas a member of the House would expire or till the date onwhich they contest election to a House and are declaredCelected, whichever is earlier.[41]

129. These consequences ensure that a member of the House isunable to reap the fruits of defection within the House. Significantly, theTenth Schedule does not have a bearing on the status of a disqualifiedmember of a House vis-à-vis their political party. In other words, if aDmember incurs disqualification under the Tenth Schedule, it does notautomatically result in their expulsion from the political party to whichthey belong. It is up to the political party and its internal processes todetermine whether to expel a member.

b. The purpose of the Symbols Order and the effect of theEdecision under Paragraph 15

130. The ECI issued the Symbols Order in 1968 in exercise of thepowers conferred by Article 324 of the Constitution read with Section29A of the Representation of the People Act 1951 and Rules 5 and 10 ofthe Conduct of Elections Rules 1961. The Symbols Order governs theFreservation and allotment of symbols to candidates for the purpose ofelections. The preamble to the Symbols Order states that it is:

“An Order to provide for specification, reservation, choice andallotment of symbols at elections in Parliamentary and AssemblyConstituencies, for the recognition of political parties in relationGthereto and for matters connected therewith.”

131. Political parties are classified into recognised political partiesand unrecognised political parties under the Symbols Order.[42] Recognised 40 Article 361-B, Constitution of India 195041 Article 75(1-B) and Article 164(1-B), Constitution of India 1950H42 Paragraph 6(1), Symbols Order 41 Article 75(1-B) and Article 164(1-B), Constitution of India 1950

political parties are further classified into National Parties and StateParties.[43] The ECI recognizes political parties as National Parties orState Parties if they satisfy the requirements prescribed in the SymbolsOrder.[44]

132. The ECI allots a symbol to every candidate who contestselections, in accordance with the Symbols Order.[45] Some symbols arecalled “reserved symbols” because they are reserved for a recognisedpolitical party and are exclusively allotted to candidates set up by thatparty and the remaining symbols are called “free symbols.”[46] The politicalparty is granted recognition under the Symbols Order based on the totalnumber of candidates returned to the Legislative Assembly or the totalpercentage of votes secured by the political party. Candidates set up byrecognised political parties must contest elections by using the symbolthat is reserved for their party, and no other symbol.[47] In contrast,candidates other than those who are set up by national or state politicalparties and who do not fall under certain special categories,[48] may chooseand will be allotted a free symbol.[49] Reserved symbols are not allottedto candidates who are not set up by the political party for which thatsymbol has been reserved.[50]

133. From this, it is evident that the purpose of the Symbols Order is:

a.To provide a uniform procedure for the recognition ofpolitical parties; and b.To provide a uniform and just system for the allotment ofsymbols for candidates to contest in elections.

134. The raison d’être for the Symbols Order is the fact thatpolitical parties (and ‘independent’ candidates) rely on the symbol allottedto them while campaigning to the electorate. To a significant extent, theelectorate too, associates the symbol allotted to a party with the partyitself and with the candidates set up for election by that party. The 43 Paragraph 6(2), Symbols Order 44 Paragraphs 6A, 6B, 6C, Symbols Order 45 Paragraph 4, Symbols Order 46 Paragraph 5, Symbols Order 47 Paragraph 8, Symbols Order 48 Paragraphs 10, 10A, 10B, Symbols Order 49 Paragraph 12, Symbols Order 50 Paragraph 8(3), Symbols Order A

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Aassociation between the party, the candidates set up for election by thatparty, and the symbol is strengthened with the passage of time. Thisassociation becomes significant in the polling booth when voters pressthe button on the Electronic Voting Machine to register their vote for aparticular candidate because the symbol is depicted on or next to thebutton. The association is doubly significant for voters who have not hadBthe opportunity to attain literacy and who rely solely on symbols to casttheir vote. In this way, symbols are crucial to the contest of elections. Itis therefore not surprising that when rival factions of a political partyemerge, both or all such factions vie for the symbol allotted to that party.

135. The ECI is empowered to adjudicate disputes between rivalCsections or groups of a recognised political party, each of whom claimsto be that party, under Paragraph 15 of the Symbols Order. When sucha dispute arises, the ECI will decide if one of the rival sections or groupsis that recognised political party. In the alternative, it may decide thatnone of the rival groups is that recognised political party. The decision ofDthe ECI is to be based on a consideration of all the available facts andcircumstances as well as the representations advanced by the rival groupsand other persons who desire to be heard. Paragraph 15 is reproducedbelow:

“15. Power of Commission in relation to splinter groups or rivalEsections of a recognised political party –When the Commission is satisfied on information in its possessionthat there are rival sections or groups of a recognised politicalparty each of whom claims to be that party, the Commission may,after taking into account all the available facts and circumstancesof the case and hearing such representatives of the sections orFgroups and other persons as desire to be heard, decide that onesuch rival section or group or none of such rival sections or groupsis that recognised political party and the decision of the Commissionshall be binding on all such rival sections or groups.”

136. The natural consequence of the decision of the ECI is thatGthe group that is recognised as constituting the political party is allottedthe symbol that was reserved for that political party. Prior to 1997, thefaction which was not granted the symbol of the political party (and bycorollary was not recognised as the political party) was also recognisedas a National Party or a State Party under the Symbols Order.[51] TheH51 V S Rama Devi and S K Mendiratta, How India Votes (3rd edition, 2014), at 621

ECI departed from this practice in 1997. The ECI has since held that thefaction that is not recognised as the political party in the proceedingsunder Paragraph 15 cannot be automatically recognised as a State orNational Party because its members were not elected on the ticket ofthe newly formed political party but on the ticket of the political partyfrom which their faction emerged.[52] The unsuccessful group must nowapply for the registration of its political party under Section 29A of theRepresentation of the People Act 1951. The ECI will allot a symbol tothe political party when it is recognised as a State or National Partyunder the Symbols Order.

137. The essence of the decision of the ECI cannot be understoodas solely a determination as to who is entitled to the symbol for thepurposes of election. While that is the outcome of the decision underParagraph 15, the substance of the decision is the determination as towhich of the groups is the lifeblood of the recognised political party. Inorder to reach a determination as to which group is entitled to the symbol,it becomes necessary for the ECI to adjudicate which group is that politicalparty itself. In other words, the ECI determines who the “real” politicalparty is and the symbol is allotted as a consequence of this decision.

138. In this regard, in Sadiq Ali (supra), this Court held that:

“35. …The allotment of a symbol to the candidates set up by apolitical party is a legal right and in case of split, the Commissionhas been authorised to determine which of the rival groups orsections is the party which was entitled to the symbol. TheCommission in resolving this dispute does not decide asto which group represents the party but which group is thatparty. If it were a question of representation, even a smallgroup according to the Constitution of the organisation maybe entitled to represent the party. Where, however, thequestion arises as to which of the rival groups is the party, thequestion assumes a different complexion and the numerical strengthof each group becomes an important and relevant factor. It cannotbe gainsaid that in deciding which group is the party, theCommission has to decide as to which group substantiallyconstitutes the party.”

52 V S Rama Devi and S K Mendiratta, How India Votes (3rd edition, 2014), at 621-622

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Ac. The test(s) applicable to disputes under Paragraph 15 ofthe Symbols Order

139. Paragraph 15 stipulates that the ECI must take into accountall the available facts and circumstances of the case and hearrepresentatives of the rival groups and other persons who wish to beBheard. However, neither Paragraph 15 nor the other provisions of theSymbols Order specify the test which is to be applied by the ECI inarriving at its decision as to who the political party is. Similarly, no test isexcluded from application by the ECI. This means that the ECI is free tofashion a test which is suited to the facts and complexities of the specificcase before it.C

140. In Sadiq Ali (supra), this Court had occasion to consider afew of the different tests that were capable of being applied in proceedingsunder Paragraph 15. In that case, two rival groups, Congress O andCongress J, emerged from the INC. While adjudicating their competingclaims under Paragraph 15, the ECI considered the following tests:D

a.A test analysing the provisions of the constitution of theparty; b.A test assessing which of the two rival groups adhered tothe aims and objects of the party as incorporated in itsEconstitution; and

c.A test evaluating which of the two rival groups enjoyed amajority in the legislature (i.e., the Houses of Parliament aswell as the Legislative Assemblies of States) and in theorganisational wing of the party.

F141. The ECI declined to apply the first test detailed above becauseeach group had expelled members from the other group. It was of theopinion that the second test was not suited to the facts of that casebecause neither Congress O nor Congress J had “openly repudiated”the aims and objects of the constitution of the party. The ECI held thatthe third test was most appropriate to the facts of that case. Accordingly,Git assessed which of the two groups constituted a majority in Parliamentand in the State Legislatures, and in the organisational wing of the party.It found that Congress J enjoyed a majority in both the organizationalwing and the legislative wing, and that it was entitled to utilise the symbolwhich had been reserved for the INC.

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142. On appeal, this Court upheld the decision of the ECI andruled that the ‘test of majority’ was a very valuable test in the facts andcircumstances of the case:

“26. … As Congress is a democratic organisation, the test ofmajority and numerical strength, in our opinion, was a very valuableand relevant test. Whatever might be the position in another systemof government or organisation, numbers have a relevance andimportance in a democratic system of government or political set-up and it is neither possible nor permissible to lose sight of them.Indeed it is the view of the majority which in the final analysisproves decisive in a democratic set-up.

27. It may be mentioned that according to Paragraph 6 of theSymbols Order, one of the factors which may be taken into accountin treating a political party as a recognised political party is thenumber of seats secured by that party in the House of People orState Legislative Assembly or the number of votes polled by thecontesting candidates set up by such party. If the number of seatssecured by a political party or the number of votes cast in favourof the candidates of a political party can be a relevantconsideration for the recognition of a political party, one is at aloss to understand how the number of seats[...] to be irrelevant

31. … All that this Court is concerned with is whether the test ofmajority or numerical strength which has been taken into accountby the Commission is in the circumstances of the case a relevantand germane test. On that point, we have no hesitation in holdingthat in the context of the facts and circumstances of the case, thetest of majority and numerical strength was not only germane andrelevant but a very valuable test.”

143. Subsequent to the decision in Sadiq Ali (supra), the ElectionCommission consistently applied the test of majority in the legislativeand organisational wings of the party to disputes under Paragraph 15.[53]However, neither the Symbols Order nor Sadiq Ali (supra) indicatesthat this is the only or even the primary test to be applied while determiningdisputes under Paragraph 15. The ECI may apply a test which is suitableto the facts of the particular dispute before it. It need not apply the sametest to all disputes, regardless of the suitability of the test to those factsand circumstances.

53 V S Rama Devi and S K Mendiratta, How India Votes (3rd edition, 2014), at 619

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Ad. The potential for complications in the present case

144. In the present case, in late June 2022 and in the first week ofJuly 2022, members of each faction filed petitions for the disqualificationof members of the opposing faction under the Tenth Schedule. On 19July 2022, Mr. Shinde filed a petition before the ECI under Paragraph 15Bof the Symbols Order, claiming that the faction led by him constitutedthe “real” Shiv Sena and that it should therefore be allotted the symbolof the Shiv Sena (the ‘bow and arrow’).

145. When the Tenth Schedule and the Symbols Order are invokedconcurrently, complications may arise, including in cases such as theCpresent one. If the ECI applies the ‘test of majority,’ it will be required toconsider (among other things) which of the two factions enjoys a majorityin the Maharashtra State Legislature. Therefore, which faction has amajority in the House will have some bearing on the outcome of theproceedings before the ECI. Whether or not a particular faction has amajority in the legislature will depend on whether members from thatDfaction have incurred disqualification. For example, we may illustrativelyconsider a case where Party X has a hundred seats in the LegislativeAssembly of a state. Two factions, Group A and Group B, emerge. Theformer consists of sixty MLAs and the latter consists of the remainingforty. Members of each group file disqualification petitions againstEmembers of the other group. The ECI is called upon to decide whichgroup is Party X under Paragraph 15 of the Symbols Order. In terms ofthe law as it currently stands, there are two possible outcomes:

a.The ECI renders its decision prior to the Speaker. It observesthat Group A enjoys a majority in the legislature. This has aFsignificant bearing on its decision although it is not the onlyfactor which is considered. Group A is adjudicated to beParty X and is awarded the symbol; or b.The Speaker renders their decision prior to the ECI. Theydisqualify some or all the members of Group A for violatingGthe anti-defection law. While adjudicating the petition underParagraph 15 of the Symbols Order, the ECI (after takinginto account the disqualification incurred by some or all ofGroup A) notes that Group A does not enjoy a majority inthe legislature. Once again, this has a significant bearing onits decision although it is not the only factor which is H

considered. Group B is adjudicated to be Party X and isawarded the symbol.

H

considered. Group B is adjudicated to be Party X and isawarded the symbol.

146. The outcome of the dispute before the ECI may changedepending on the outcome of the disqualification petitions. It is preciselythis complication which the petitioners seek to guard against. Thepetitioners urge that when proceedings under Paragraph 15 of theSymbols Order and the Tenth Schedule have arisen concurrently, thisCourt ought to lay down a ‘constitutional sequence’ for the proceedings.They submit that proceedings under the Tenth Schedule must beadjudicated before the dispute under Paragraph 15 of the Symbols Orderis determined, and that a symbol can be allotted only after “the finaladjudication of the Tenth Schedule proceedings.”

147. The contentions of the petitioners cannot be brushed aside.If the faction which enjoys a majority in the House is disqualified soonafter being adjudicated to be the political party, the very foundation oftheir claim of being the political party no longer subsists. Even if they arenot disqualified, the foundation of their claim (i.e., a legislative majority)is still on uncertain ground at the time of adjudication. This is not aconstitutionally desirable outcome.

e. Harmonising the Tenth Schedule with Paragraph 15 of theSymbols Order

148. This Court cannot accept the solution proposed by thepetitioners and lay down a constitutional sequence. To hold that the ECIis barred from adjudicating petitions under Paragraph 15 of the SymbolsOrder until the “final adjudication” of the disqualification petitions underthe Tenth Schedule would be, in effect, to indefinitely stay the proceedingsbefore the ECI. This is because an order of the Speaker attains finalityonly after all avenues for appeal have been exhausted or are barred bythe passage of time. The time that it would take for an order of theSpeaker to attain finality is uncertain. The ECI is a constitutionallyentrenched institution which is entrusted with the function ofsuperintendence of and control over the electoral process. The ECI,which is a constitutional authority, cannot be prevented from performingits constitutional duties for an indefinite period of time. Proceedings beforeone constitutional authority cannot be halted in anticipation of the decisionof another constitutional authority.

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A149. This Court must also be alive to the possibility of the death ofa political party in the intervening period, or further complications thatmay arise if elections are announced during the period when proceedingsbefore the ECI are stayed, if a stay were to be granted. When a disputeunder Paragraph 15 of the Symbols Order is pending adjudication, it isstandard practice for the ECI to freeze the symbol reserved for thatBpolitical party and allot interim symbols to the rival groups. If the reservedsymbol is frozen for an inordinately long period of time and the interimsymbols must be resorted to for every by-election and election, it maywell end the association between the reserved symbol and the politicalparty in the minds of the electorate. This will no doubt be a blow to theCpolitical party which is lawfully entitled to the symbol reserved for itsuse. Therefore, the ECI must render a decision as to which groupconstitutes that political party.

150. In arriving at this decision, it is not necessary for the ECI torely on the test of majority in the legislature alone. In cases such as theDpresent one, it would be futile to assess which group enjoys a majority inthe legislature. Rather, the ECI must look to other tests in order to reacha conclusion under Paragraph 15 of the Symbols Order. The other testsmay include an evaluation of the majority in the organisational wings ofthe political party, an analysis of the provisions of the party constitution,or any other appropriate test.E

151. When this Court decided the petition in Sadiq Ali (supra),the Tenth Schedule did not form a part of the Constitution. There was noway for this Court to have anticipated the complexities that could ariseon its inclusion while deciding which test was most appropriate.Regardless, this Court did not hold that the test of majority in the legislatureFwas exclusively appropriate or even that it was the primary test. It insteadfound that the test was suited to the facts and circumstances of thatcase. As noticed in the preceding paragraphs, nothing in the SymbolsOrder mandates the use of a particular test to the exclusion of othertests. The ECI must apply a test which is best suited to the unique factsGand circumstances of the case before it. The parties in the dispute beforethe ECI are free to propose a suitable test and the ECI may either applyone of the tests proposed or fashion a new test, as appropriate. ThisCourt observed in Sadiq Ali (supra) that the test of legislative majoritywas a relevant test under Paragraph 15 proceedings in that case for tworeasons: first, INC was according to the court a democratic organisation,Hand numbers matter in such organisations; and second, the total number of seats secured by the political party in the legislative assembly is arelevant factor for the recognition of a political party as a State or aNational Party. When legislators are disqualified under the TenthSchedule, the basis of recognition of the political party under the SymbolsOrder and correspondingly, one of the reasons for using the test oflegislative majority itself becomes diluted. Thus, it is not appropriate toconfine the ECI to the singular test of legislative majority in suchsituations.

152. In Sadiq Ali (supra), this Court noted that one of the testsconsidered by the ECI was an assessment of which of the two rivalgroups adhered to the aims and objects of the party as incorporated in itsconstitution. This Court did not have occasion to express its opinion onthe validity of this test because it found that the test of majority wasrelevant to the facts in Sadiq Ali (supra). Since we have left it open tothe ECI to apply a test other than that which evaluates which of thegroups constitute a majority, it becomes necessary to consider whetherthe alternatives are viable.

153. An evaluation of whether rival groups are adhering to theaims and objects of the party as incorporated in its constitution, andwhich of the rival groups is more in consonance with such aims andobjects, is an entirely subjective exercise. Different groups may adoptdifferent paths or methods to achieve the same object. It would not beappropriate for the ECI to accord its stamp of approval to the routes ormethods chosen by one group over those chosen by another group. Thiswould amount to entering the political arena. For example, one of theaims detailed in the constitution of a party could be that it will worktowards attaining economic justice. Two rival sections of this party mayemerge. The first group may happen to advocate for direct benefittransfers whereas the second group may be of the belief that subsidisingthe cost of certain products is a preferable alternative. The exercise ofthe ECI in determining which of these methods (and by extension, whichof the rival groups) is more suited to attaining economic justice issubjective. Although this is a simplified example, it is illustrative of themanner in which the same goal can be sought to be attained by differentroutes, and the ECI while making such an assessment would be renderingits opinion without any objective basis. The ECI must remain a neutralbody and refrain from passing a subjective judgement on the approachespreferred by the rival factions.

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A154. At this stage, a question may arise as to whether the decisionof the ECI under the Symbols Order must be consistent with the decisionof the Speaker under the Tenth Schedule. The answer is no. This isbecause the decision of the Speaker and the decision of the ECI areeach based on different considerations and are taken for differentpurposes.B

155. The decision of the ECI has prospective effect. A declarationthat one of the rival groups is that political party takes effect prospectivelyfrom the date of the decision. In the event that members of the factionwhich has been awarded the symbol are disqualified from the House bythe Speaker, the members of the group which continues to be in theCHouse will have to follow the procedure prescribed in the Symbols Orderand in any other relevant law(s) for the allotment of a fresh symbol totheir group.

156. The disqualification proceedings before the Speaker cannotbe stayed in anticipation of the decision of the ECI. In cases where aDpetition under Paragraph 15 of the Symbols Order is filed after the(alleged) commission of prohibitory conduct, the decision of the ECIcannot be relied upon by the Speaker for adjudicating disqualificationproceedings. If the disqualification petitions are adjudicated based onthe decision of the ECI in such cases, the decision of the ECI wouldEhave retrospective effect. This would be contrary to law.

157. When the conduct prohibited under the Tenth Schedule is(allegedly) committed, there is only one political party. As discussed inthe preceding segments of this judgement, this necessitates the Speakerprima facie determining who the political party was at the time of theact which is alleged attract the provisions of the Tenth Schedule. TheFdecision of the Speaker that a member of the House is disqualified forvoluntarily giving up the membership of the political party would onlydisqualify them from the House. It would not lead to an automaticexpulsion of the member from the political party. It follows that thesubmission of the petitioners that a legislator who has incurredGdisqualification under Paragraph 2 of the Tenth Schedule has no locus toinstitute a petition under Paragraph 15 of the Symbols Order, cannot beaccepted. We accordingly answer the question referred to us as notedin Paragraph 32(j) of this judgment.

158. In the proceedings instituted by Mr. Shinde under ParagraphH15 of the Symbols Order, the ECI awarded the symbol “bow and arrow”

reserved for the Shiv Sena to the faction led by him. The petitionerschallenged this order before this Court.[54] By an order dated 22 February2023, this Court issued notice. We have not expressed any opinion onthe merits of that case.

vi. The impact of the deletion of Paragraph 3 of the Tenth Schedule

159. The Tenth Schedule to the Constitution was inserted by theConstitution (Fifty-second Amendment) Act 1985. The Tenth Schedulesought to provide a remedy to the ‘constitutional sin’ of defection. Simplyput, defection is the act of members of either House of the statelegislature or of either House of Parliament shifting allegiances by exitingthe political party on whose ticket they went to the polls and joininganother political party. The years prior to the insertion of the TenthSchedule witnessed innumerable defections in political parties at boththe Union and State level. The turbulent political scenario ensuing fromthese defections gave rise to the need for an anti-defection law in thecountry.

160. The Tenth Schedule penalises defection by disqualifying anymember of the House who is found to have indulged in the prohibitedact. Paragraph 2(1)(a) stipulates that a member of a House belonging toany political party shall be disqualified for being a member of the Houseif they have voluntarily given up their membership of such political party.Paragraph 2(1)(b) provides that a member shall be disqualified if theyvote or abstain from voting in the House contrary to any directions issuedby the political party to which they belong, or by any person authorisedby it in this behalf.

161. Paragraph 6 of the Tenth Schedule entrusts the Speaker ofthe House with the authority to adjudicate disqualification petitions. Whileadjudicating a disqualification petition, the Speaker must also considerany defence(s) raised by the member against whom the petition hasbeen filed. The Tenth Schedule, as it currently stands, specifies fivedefences which a member may take recourse to, to shield themselvesfrom the consequences of the anti-defection law:

a.A member will not be disqualified under Paragraph 2(1)(b)if they have obtained the prior permission of their politicalparty to vote or abstain from voting contrary to the directionsissued by such political party;[55]

54 SLP(C) No. 3997 of 2023

55 Paragraph 2(1)(b) of the Tenth Schedule to the Constitution A

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Ab.A member is protected from being disqualified underParagraph 2(1)(b) if the political party to which they belonghas condoned their actions in voting or abstaining from votingcontrary to the directions issued by such political party, withinfifteen days from such voting or abstention;[56]

Bc.In terms of Paragraph 4, a member will not be disqualifiedeither under Paragraph 2(1)(a) or under Paragraph 2(1)(b)where their original political party merges with anotherpolitical party and they claim that they and any othermembers of their original political party have becomemembers of such other political party or of a new politicalCparty formed by the merger.[57] This defence is made outonly if not less than two-thirds of the members of thelegislature party concerned have agreed to the merger;[58]

d.In cases where the original political party of a member isfound to have merged with another political party underDParagraph 4(1)(a), members of the original political partyare protected from being disqualified if they have notaccepted such merger and have opted to function as aseparate group;[59] and e.Members who have been elected to the office of theESpeaker or the Deputy Speaker (or the Chairman or theDeputy Chairman as the case may be) in Parliament or inthe Legislative Assemblies of States are exempted fromdisqualification under the Tenth Schedule if they voluntarilygive up the membership of their political party by reason ofFtheir election to such office and do not re-join the politicalparty or become a member of another political party solong as they continue to hold such office. Further, they arenot disqualified if they re-join the political party which theygave up membership of, after ceasing to hold office.[60]

G162. Prior to 2003, a sixth defence under Paragraph 3 was availableto members against whom disqualification petitions were filed. Paragraph56 Paragraph 2(1)(b) of the Tenth Schedule to the Constitution 57 Paragraph 4(1)(a) of the Tenth Schedule to the Constitution 58 Paragraph 4(2) of the Tenth Schedule to the Constitution 59 Paragraph 4(1)(b) of the Tenth Schedule to the ConstitutionH60 Paragraph 5 of the Tenth Schedule to the Constitution 3 stipulated that a member of the House would not be subject todisqualification if there was a split in their original political party. It wasomitted from the Tenth Schedule by the Constitution (Ninety-firstAmendment) Act 2003. Prior to its omission, Paragraph 3 read as follows:

“3. Disqualification on ground of defection not to apply in case ofsplit.—Where a member of a House makes a claim that he andany other members of his legislature party constitute the grouprepresenting a faction which has arisen as a result of a split in hisoriginal political party and such group consists of not less thanone-third of the members of such legislature party,—

(a) he shall not be disqualified under sub-paragraph (1) ofparagraph 2 on the ground—

(i) that he has voluntarily given up his membership of his originalpolitical party; or

(ii) that he has voted or abstained from voting in such Housecontrary to any direction issued by such party or by any person orauthority authorised by it in that behalf without obtaining the priorpermission of such party, person or authority and such voting orabstention has not been condoned by such party, person or authoritywithin fifteen days from the date of such voting or abstention; and (b) from the time of such split, such faction shall be deemed to bethe political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political partyfor the purposes of this paragraph.”

a. The defence of a ‘split’ is no longer available to memberswho face disqualification proceedings

163. The question before this Court is – what is the impact of thedeletion of Paragraph 3 of the Tenth Schedule? This question has arisenin the context of both factions of the Shiv Sena claiming to be the “real”Shiv Sena. In effect, this points to the existence of a split within theSSLP. However, no faction or group can argue that they constitute theoriginal political party as a defence against disqualification on the groundof defection.

164. The inevitable consequence of the deletion of Paragraph 3from the Tenth Schedule is that the defence of a split is no longer availableto members who face disqualification proceedings. In cases where asplit has occurred in a political party or in a legislature party, members of AB

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Aneither faction may validly raise the defence that they are the politicalparty in the event that each faction files petitions for the disqualificationof members of the other faction. The defence sought to be availed ofmust be found within the Tenth Schedule as it currently stands.

165. Members of multiple groups or factions can all continue asBmembers of the House if the requirements of Paragraph 4(1) of theTenth Schedule are satisfied. Two (or more) factions of a political partycan both remain in the House if one of the factions has opted to mergewith another political party in terms of Paragraph 4(1)(a) and the otherfaction has chosen not to accept the merger. However, in cases wherea split has occurred, and members of one of the factions are found toChave satisfied the conditions in Paragraph 2(1) and are also unable toestablish any of the five defences detailed above, they would standdisqualified. The percentage of members in each faction is irrelevant tothe determination of whether a defence to disqualification is made out.

166. This is necessarily the implication of the deletion of ParagraphD3. To hold otherwise would be to permit the entry of the defence of‘split’ in the Tenth Schedule through the back door. This is impermissibleand would render the deletion of Paragraph 3 meaningless. It is trite lawthat what cannot be done directly cannot be permitted to be doneindirectly.[61]The interpretation which we have expounded is the only oneEwhich comports with the deletion of Paragraph 3.

b. The decision of the Speaker under Paragraph 2 of theTenth Schedule

167. Regardless of the defence available to members who facedisqualification proceedings, the Speaker may be called upon to determineFwho the “real” political party is while adjudicating disqualification petitionsunder Paragraph 2(1)(a) where two or more factions of the political orlegislature party have arisen. The effect of the deletion of Paragraph 3is that both factions cannot be considered to constitute the original politicalparty. In order to determine which (if any) of the members of the partyhave voluntarily given up membership of the political party underGParagraph 2(1)(a), it is necessary to first determine which of the factionsconstitute the political party. This determination is a prima faciedetermination and will not impact any other proceedings including theproceedings under Paragraph 15 of the Symbols Order.

61 Delhi Admn. v. Gurdip Singh Uban, (2000) 7 SCC 296; Taxi Owners United TransportHv. State Transport Authority (Orissa), (1983) 4 SCC 34

168. In arriving at their decision, the Speaker must consider theconstitution of the party as well as any other rules and regulations whichspecify the structure of the leadership of the party. If the rival groupssubmit two or more versions of the party constitution, the Speaker mustconsider the version which was submitted to the ECI before the rivalfactions emerged. In other words, the Speaker must consider the versionof the party constitution which was submitted to the ECI with the consentof both factions. This will obviate a situation where both factions attemptto amend the constitution to serve their own ends. Further, the Speakermust not base their decision as to which group constitutes the politicalparty on a blind appreciation of which group possesses a majority in theLegislative Assembly. This is not a game of numbers, but of somethingmore. The structure of leadership outside the Legislative Assembly is aconsideration which is relevant to the determination of this issue.

169. The deletion of Paragraph 3 impacts the proceedings underParagraph 2(1)(b) as well. When there are two Whips appointed by twoor more factions of the political party, the Speaker, as held in the precedingsection of the judgement, decides which of the two Whips representsthe political party. Thus, the adjudication of the Speaker on whether amember must be disqualified under Paragraph 2(1)(b) would also dependon the decision of the Speaker recognising one of the two (or more)Whips. We accordingly answer the question referred to us as noted inParagraph 32(f) of this judgment.

vii. The exercise of discretion by the Governor in directing Mr.Thackeray to face a floor test

170. The facts relevant to the determination of this issue havebeen narrated in the introductory part of this judgement. To recount,thirty-four MLAs of the Shiv Sena met and passed a resolution on 21June 2022. The resolution reaffirmed that Mr. Eknath Shinde “continuesto be” the Group Leader of the SSLP, cancelled the appointment of Mr.Sunil Prabhu as the Chief Whip, and appointed Mr. Bharat Gogawale inhis place. The signatories also expressed their discontent anddissatisfaction with the Shiv Sena for forming the Government in alliancewith the INC and the NCP. Separately, on 28 June 2022, the Governorreceived letters from the Leader of Opposition at the time, Mr. DevendraFadnavis, and seven MLAs who were elected as independent candidatesrequesting him to direct Mr. Thackeray to prove his majority on the floorof the House. On the same day, the Governor issued the communication A

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Aimpugned in WP(C) 470 of 2022 to Mr. Thackeray, directing him toprove his majority on the floor of the House on 30 June 2022. Mr.Thackeray resigned on 29 June 2022 after this Court declined to staythe trust vote. Thus, WP(C) 470 of 2022 has been rendered infructuous.This Court is no longer called upon to set aside the letter dated 28 June2022. However, the question of whether the Governor exercised theBdiscretion vested in him by the Constitution in accordance with law isrequired to be addressed by this Court in view of the enormity of theresponsibility entrusted with the gubernatorial office as well as thesignificance of the consequences which follow from the exercise ofsuch discretion.C171. The letter sent by the Governor to the then-Chief Ministerindicates that he relied on the following circumstances in arriving at theconclusion that a floor test was required:

a.A letter received from the then Leader of Opposition statingthat Mr. Thackeray no longer enjoyed the confidence ofDthe House; b.Letters received from seven independent MLAs requestingthe Governor to direct Mr. Thackeray to prove his majorityon the floor of the House;

c.The resolution dated 21 June 2022 signed by thirty-fourmembers of the SSLP stating that they were dissatisfiedwith the Shiv Sena for forming an alliance with the INCand the NCP; E

d.A letter dated 21 June 2022 addressed by Mr. Shinde to theFDeputy Speaker stating that the appointment of Mr. AjayChoudhari as the Leader of the SSLP was illegal; and e.A letter dated 25 June 2022 received from thirty-eightmembers of the SSLP stating that the security provided tothem by the State Government had been withdrawn illegallyand that their lives were in danger.

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172. Based on these materials, the Governor (in the letter dated28 June 2022) concluded that Mr. Thackeray had lost the confidence ofthe House:

“… a majority of the Shiv Sena MLAs have given a clear indicationHon behalf of the Shiv Sena Legislature Party that they intend to exit from the Maha Vikas Aghadi Government and that you havebeen made aware of the same and that you are trying to win overyour MLAs and cadre by means which are not democratic. I amtherefore confident that you and your Government has lost thetrust of the House and the Government is in minority.”

The Governor then called upon Mr. Thackeray to prove his majorityon the floor of the House on 30 June 2022.

173. The Governor constitutes an integral part of a StateLegislature. The executive power of the State is vested in the Governor.Article 163 requires the Governor to exercise their legislative andexecutive power on the aid and advice of the Council of Ministers. Article163(2) empowers the Governor to exercise their discretionary powerswhen required by or under the Constitution. Article 174(1) provides thatthe Governor shall from time to time summon the House to meet at suchtime and place as they think fit. Article 175(1) empowers the Governorto address the House. Article 175(2) permits the Governor to sendmessages to the House whether with respect to a pending Bill orotherwise.

a. The power of the Governor to call for a floor test

174. In S R Bommai (supra) the Janata Party formed thegovernment in Karnataka under the leadership of S R Bommai in August1988. Soon after, the Janata Party and Lok Dal (B) merged into a newparty called Janata Dal. In April 1989, seventeen Janata Dal legislatorswrote to the Governor withdrawing their support to the government. On19 April 1989, the Governor sent a report to the President stating thatthe Chief Minister had lost the majority in the Assembly and recommendedinvocation of the President’s rule under Article 356(1) of the Constitution.On 20 April 1989, the Chief Minister offered to prove majority on thefloor of the House. However, on the same day the Governor sent anotherreport to the President reiterating that the Chief Minister had lost theconfidence of the majority of the House and recommended action underArticle 356(1). Accordingly, on 21 April 1989, the President issued aproclamation, dismissed the State Government, and dissolved theAssembly.

175. This Court held that the Governor cannot decide whetherthe Council of Ministers has lost the confidence of the House and thishas to be determined on the floor of the House. This Court approvingly A

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Areferred to the Report of the five-member Committee of Governorswhich recommended that when a Governor is satisfied “by whateverprocess or means” that the Government no longer enjoys the support ofthe majority, they should ask the Chief Minister to prove their majorityon the floor of the Assembly. B P Jeevan Reddy, J held that loss ofconfidence by a Government is an objective fact which has to beBascertained only on the floor of the House:

“391. [...] The Constitution does not create an obligation that thepolitical party forming the ministry should necessarily have amajority in the Legislature. Minority Governments are notunknown. What is necessary is that that Government should enjoyCthe confidence of the House. This aspect does not appear to havebeen kept in mind by the Governor. Secondly and more importantly,whether the Council of Ministers has lost the confidence of theHouse is not a matter to be determined by the Governor or forthat matter anywhere else except the floor of the House. TheDprinciple of democracy underlying our Constitution necessarilymeans that any such question should be decided on the floor ofthe House. The House is the place where the democracy is inaction. It is not for the Governor to determine the said question onhis own or on his own verification. This is not a matter within hissubjective satisfaction. It is an objective fact capable of beingEestablished on the floor of the House. [...]”

176. In Shivraj Singh Chouhan (supra), the government in theState of Madhya Pradesh was formed by the INC. During the term ofthe Assembly, MLAs of the BJP submitted resignation letters of twenty-two MLAs from the INC to the Speaker. The Speaker accepted six ofFthe twenty-two resignations. The party in the opposition in the Assemblywrote a letter to the Governor adverting to these resignations. TheGovernor directed a trust vote to be carried out. The action of theGovernor was assailed before this Court. This Court held that theconstitutional scheme vested the Governor with the power and discretionGto call for a trust vote in a “running Assembly” and that such a decisionis subject to judicial review. This Court ruled that the decision to call fora floor test should be based on objective material and reasons which arerelevant and germane to the exercise of discretion, and not extraneousto it. The Court emphasised that the Governor should not use theirdiscretionary power to destabilise or displace democratically electedHgovernments:

“71. The powers which are entrusted to constitutional functionariesare not beyond the pale of judicial review. Where the exercise ofthe discretion by the Governor to call a floor test is challengedbefore the court, it is not immune from judicial review. The courtis entitled to determine whether in calling for the floor test, theGovernor did so on the basis of objective material and reasonswhich were relevant and germane to the exercise of the power.The exercise of such a power is not intended to destabilise ordisplace a democratically elected Government accountable to theLegislative Assembly and collectively responsible to it. Theexercise of the power to call for a trust vote must be guided bythe overarching consideration that the formation of satisfactionby the Governor is not based on extraneous considerations.”

177. This Court also observed that unless there are “exigent andcompelling circumstances”, the Governor should not prevent the ordinarylegislative process of a no-confidence motion from running its due course.In Shivraj Singh Chouhan (supra), the Speaker accepted theresignations of only six members who were Ministers of the incumbentGovernment, and adjourned the Assembly for thirteen days. It was inview of these facts that this Court held there was objective material andrelevant reasons for the Governor to call for a floor test.

178. The power of the Governor to summon the House underArticle 174 must be exercised on the aid and advice of the Council ofMinisters. Rule 95 of the Maharashtra Legislative Assembly Rulesstipulates that a member who wishes to move a motion of no-confidencein the Council of Ministers shall do so by a notice in writing. If themotion is admitted by the Speaker and the Assembly is in session, leaveto move the motion must be granted not later than two days from thedate of the notice. However, if the notice is received when the Assemblyis not in session, leave to move the motion shall be granted within twodays from the commencement of the session.

179. To avert a no-confidence motion, the incumbent Governmentmay not advise the Governor to convene a session of the Assembly, andthe Speaker may adjourn the sitting of the House to prevent voting forgranting leave to move a motion of no-confidence. If the Speaker andthe Government attempt to circumvent a no-confidence motion, theGovernor would be justified in exercising the power under Article 174without the aid and advice of the Council of Ministers.

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A180. The Constitution and the system of governance that it providesis based on representative democracy. This means that each citizen hasan active and participatory role in how the governments at various levelsfunction. The elected representatives of the people act on their behalfby enacting laws and overseeing the implementation of policies. This isour chosen path to achieve democracy. Direct and indirect elections andBthe candidates who are elected are indispensable to our model ofrepresentative democracy. Hence, the Constitution empowers the electedrepresentatives to act on behalf of the people. Consequently, the Governorwho despite their constitutional status is unelected, is vested with limiteddiscretionary powers. C

181. The power of the Governor to act without the aid and adviceof the Council of Ministers is of an extraordinary nature. The exerciseof such powerhas ramifications on parliamentary democracy. Hence,the ambit of the exercise of such power by the Governor must becalibrated to meet the exigencies of situations where the Governor isDsatisfied on the basis of objective material that there is sufficient causeto warrant the exercise of their extraordinary power. The discretion tocall for a floor test is not an unfettered discretion but one that must beexercised with circumspection, in accordance with the limits placed on itby law.

Eb. The Governor’s exercise of the power to call for a floortest

182. In his letter dated 28 June 2022, the Governor relied on thefive circumstances mentioned above to arrive at following conclusions:(i) a majority of the MLAs of Shiv Sena intended to exit from the MVAFgovernment; (ii) Mr. Thackeray was trying to win over the MLAs usingundemocratic methods; and (iii) Mr. Thackeray had lost the trust of theHouse and the MVA Government was in the minority.

183. The petitioners have urged that the Governor was not justifiedin reaching the conclusion that he did on the basis of the resolution datedG21 June 2022 because: (i) the thirty-four MLAs belonging to Shiv Senadid not express their intention to exit the MVA government; and (ii) theMLAs who signed the resolution constituted a faction of the SSLP.

184. Although the resolution dated 21 June 2022 specifies thatsome MLAs of the SSLP were dissatisfied with the functioning of theMVA government, it does not record their intention to withdraw supportH

from the Government. Among the thirty-four MLAs who signed theresolution dated 28 June 2022, a few were also Ministers in theGovernment. On the basis of this resolution, the Governor concludedthat “a majority of the Shiv Sena MLAs have given a clear indication …that they intend to exit from the Maha Vikas Aghadi Government.”

185. The assembly was not in session when Mr. Fadnavis andseven independent MLAs wrote to the Governor. However, there wasno attempt made by the members of the opposition parties to issue anotice for a no-confidence motion against the incumbent government.

186. The Governor had no objective material on the basis of whichhe could doubt the confidence of the incumbent government. Theresolution on which the Governor relied did not contain any indicationthat the MLAs wished to exit from the MVA government. Thecommunication expressing discontent on the part of some MLAs is notsufficient for the Governor to call for a floor test. The Governor ought toapply his mind to the communication (or any other material) before himto assess whether the Government seemed to have lost the confidenceof the House. We use the term ‘opinion’ to mean satisfaction based onobjective criteria as to whether he possessed relevant material, and notto mean the subjective satisfaction of the Governor. Once a governmentis democratically elected in accordance with law, there is a presumptionthat it enjoys the confidence of the House. There must exist someobjective material to dislodge this presumption.

187. The MLAs did not express their desire to withdraw supportfrom the MVA Government in the resolution dated 21 June 2022. Evenif it is assumed that the MLAs implied that they intended to exit from theGovernment, they only constituted a faction of the SSLP and were atmost, indicating their dissatisfaction with the course of action adoptedby their political party.

188. The political imbroglio in Maharashtra arose as a result ofparty differences within the Shiv Sena. However, the floor test cannotbe used as a medium to resolve internal party disputes or intra partydisputes. Dissent and disagreement within a political party must beresolved in accordance with the remedies prescribed under the partyconstitution, or through any other methods that the party chooses to optfor. There is a marked difference between a party not supporting agovernment, and individuals within a party expressing their discontentwith their party leadership and functioning.

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A189. The Governor is the titular head of the State Government.He is a constitutional functionary who derives his authority from theConstitution. This being the case, the Governor must be cognizant of theconstitutional bounds of the power vested in him. He cannot exercise apower that is not conferred on him by the Constitution or a law madeunder it. Neither the Constitution nor the laws enacted by ParliamentBprovide for a mechanism by which disputes amongst members of aparticular political party can be settled. They certainly do not empowerthe Governor to enter the political arena and play a role (however minute)either in inter-party disputes or in intra-party disputes. It follows fromthis that the Governor cannot act upon an inference that he has drawnCthat a section of the Shiv Sena wished to withdraw their support to theGovernment on the floor of the House.

190. It is true that the letter dated 25 June 2022 sent by someMLAs of the Shiv Sena to the Governor requesting him to issue directionsto the appropriate authorities for the restoration of their security detailsDmentions that those MLAs “no longer wanted to be a part of the corrupt

MVA government.” However, this cannot be taken to mean that theyhad withdrawn their support on the floor of the House. Nothing in anyof the communications relied upon by the Governor indicates that thedissatisfied MLAs from the Shiv Sena intended to withdraw their supportto the Chief Minister and the Council of Ministers. At the highest, theEvarious communications expressed the fact that a faction of MLAsdisagreed with some policy decisions of the party. The course of actionthey wished to adopt in order to air their grievances and redress themwas, at the time the floor test was directed to be conducted, uncertain.Whether they would choose to enter deliberations with their colleagues Fin the House or in the political party, or mobilise the cadres, or resignfrom the Assembly in protest, or opt to merge with another party, wasuncertain. Therefore, the Governor erred in relying upon the resolutionsigned by a faction of the SSLP MLAs to conclude that Mr. Thackerayhad lost the support of the majority of the House.

G191. Second, the Governor relied on the letter dated 25 June 2022from thirty-eight SSLP members claiming that the security provided tothem and to their families was illegally withdrawn. The MLAs claimedthat the security was withdrawn to coerce them into continuing to supportthe MVA government “against their free will.” Therefore, they demandedrestoration of the security provided to them and to their family members.H

After receiving the letter, the Governor issued directions to the statepolice to provide adequate protection to the MLAs, the members oftheir families, and their property. However, the lack of security to MLAshas no bearing on the question of whether the Government enjoys theconfidence of the House. The appropriate response of the Governor insuch cases is to ensure that the security that they are lawfully entitled tocontinues to be provided to them, if it has been removed. This was anextraneous reason that was considered by the Governor.

192. The third communication that the Governor relied on is theletter dated 21 June 2022 addressed by Mr. Eknath Shinde to the DeputySpeaker stating that the appointment of Mr. Ajay Choudhari was illegal.The Governor may not enquire into or express an opinion on the validityof proceedings of the legislature. That is exclusively within the domainof the legislature itself or in certain circumstances (discussed in theprevious segment of this judgement) within the domain of Courts. Thediscretionary power of the Governor under Article 163 of the Constitutionis limited to situations where a constitutional provision expressly providesfor it, or where the Constitution cannot be construed otherwise than togrant such discretion.[62] Hence, the Governor ought not to have relied onthe letter dated 21 June 2022. In any event, the contents of the letter didnot indicate anything to suggest that the then-Chief Minister Mr.Thackeray had lost the confidence of the House.

193. Finally, the Governor relied on the letters written by Mr.Fadnavis and seven ‘independent’ MLAs, calling upon him to direct Mr.Thackeray to prove his majority on the floor of the House. First, bothMr. Fadnavis as well as the seven MLAs could have well moved amotion of no-confidence. Nothing prevented them from doing so. Second,a request by some MLAs for a direction to the Chief Minister to provehis majority does not, taken alone, amount to a relevant and germanereason to call for a floor test. There must be some objective material inaddition to a mere request to call for a floor test. In the present case, theGovernor did not have any objective material before him to indicate thatthe incumbent government had lost the confidence of the House andthat he should call for a floor test. Hence, the exercise of discretion bythe Governor in this case was not in accordance with law.

194. Relying on Bommai (supra) and Nabam Rebia (supra), thepetitioners argue that this Court has the power to restore the status quo62 Nabam Rebia (supra)

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Aante and rule that the Government with Mr. Thackeray as its ChiefMinister is to be reinstated. However, this argument does not accountfor the fact that Mr. Thackeray did not face the floor test on 30 June2022 and instead submitted his resignation. This Court cannot quash aresignation that has been submitted voluntarily. Had Mr. Thackerayrefrained from resigning from the post of the Chief Minister, this CourtBcould have considered the grant of the remedy of reinstating thegovernment headed by him. The order of this Court dated 29 June 2022held that the outcome of the trust vote to be conducted on 30 June 2022“shall be subject to the final outcome” of this batch of petitions. Sincethe trust vote was not held, the question of it being subject to the finalCoutcome of these petitions does not arise.

195. The petitioners urge that the pendency of disqualificationpetitions before the Speaker or the Deputy Speaker ought to have resultedin the postponement of the floor test. This argument cannot be accepted.As discussed in the previous section of this judgement, the pendency ofDdisqualification petitions does not bar an MLA from participating in theproceedings of the House. This includes the right of an MLA to participatein the floor test. It is true that adjudication of disqualification petitionswould alter the numbers in the Assembly, and ultimately bear on theoutcome of a floor test. The option of initiating a no-confidence motionafter the adjudication of disqualification petitions is open to the MLAs.EHowever, this Court cannot stay the proceedings of the House until thedisqualification petitions are decided. To do so would amount to interferingwith the proceedings of the House. The discretion of the Governor todirect the Chief Minister to face a floor test ought to be based on objectivematerial. Fviii. The exercise of discretion by the Governor in inviting Mr.Shinde to be the Chief Minister

196. The petitioners have challenged the exercise of discretion bythe Governor in inviting Mr. Shinde to form the government on twogrounds: first, Mr. Shinde’s appointment is barred by Article 164(1B) ofGthe Constitution; and second, the Governor has exceeded the scope ofhis authority by recognizing one of the two rival factions as being the“real” Shiv Sena. These submissions are addressed in turn.

a. Mr. Shinde’s appointment is not barred by Article 164(1B)of the Constitution H

197. Article 164(1B) of the Constitution is reproduced below:

“ 164. Other provisions as to Ministers.

…

(1B) A member of the Legislative Assembly of a State or eitherHouse of the Legislature of a State having Legislative Councilbelonging to any political party who is disqualified for being amember of that House under paragraph 2 of the TenthSchedule shall also be disqualified to be appointed as aMinister under clause (1) for duration of the period commencingfrom the date of his disqualification till the date on which the termof his office as such member would expire or where he contestsany election to the Legislative Assembly of a State or either Houseof the Legislature of a State having Legislative Council, as thecase may be, before the expiry of such period, till the date onwhich he is declared elected, whichever is earlier.”

198. Article 164(1B) bars an MLA or a Member of the LegislativeCouncil of a State (where one exists) from being appointed as a Ministerif they have been disqualified under Paragraph 2 of the Tenth Schedule.The bar begins to operate only upon the member of the legislatureincurring disqualification. Article 164(1B) does not interdict theappointment of a member to the post of a Minister if a petition for theirdisqualification under Paragraph 2 of the Tenth Schedule is pendingadjudication before the Speaker. This is evident from the language ofArticle 164(1B), which states that a member who is disqualified underParagraph 2 of the Tenth Schedule shall also be disqualified to be appointedas a Minister.

199. In other words, the mere institution of a disqualification petitiondoes not trigger some or all of the consequences which flow from thedisqualification itself. To hold otherwise would be to blur or efface thedistinction between the institution of a disqualification petition against amember of the House and the disqualification of that member. A claimthat something is true does not mean that it is actually true. A claim mustbe established according to the procedure established by law before itcan be considered to be a fact. When a petition for disqualification underthe Tenth Schedule is filed before the Speaker, the party who filed thepetition asserts that the respondent in the petition has contravened the A

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Aprovisions of the Tenth Schedule. This averment must be tested on theanvil of evidence before the Speaker, who acts as a Tribunal under theTenth Schedule. Article 164(1B) is therefore triggered only when theSpeaker returns a verdict finding that the member of the House inquestion has breached Paragraph 2 of the Tenth Schedule. If the Speakerfinds that Mr. Shinde is disqualified, he will no longer be eligible to holdBthe post of Chief Minister for the duration specified in Article 164(1B).

200. The petitioners have relied on the decision in Rajendra SinghRana (supra) in support of their contention. As discussed in the previoussegment of this judgment, the disqualification of a member of the Houserelates back to the date on which the proscribed act was performed forCthe purpose of determining whether a defence to disqualification is madeout.

201. The petitioners have also relied on the decision in ShrimanthBalasaheb Patil(supra) to urge that the appointment of Mr. Shinde isbarred by Article 164(1B). In this case, the State Government ofDKarnataka was formed by a coalition consisting of MLAs of the INCand the Janata Dal (Secular) in 2018. In early 2019, a series ofdisqualification petitions under the Tenth Schedule were filed againstMLAs of various parties which formed the government. Some of themsubmitted their resignations to the Speaker either immediately before orEshortly after the disqualification petitions were filed against them. Thecase had a chequered history. The Speaker ultimately passed an orderinter alia disqualifying these MLAs.

202. Aggrieved by the order of the Speaker, the disqualified MLAsapproached this Court under Article 32 of the Constitution. The MLAsFwho had tendered their resignations argued that the Speaker did nothave the jurisdiction to adjudicate the petitions for their disqualificationbecause they had already resigned and were therefore not members ofthe House who could be disqualified. Relying on Rajendra Singh Rana(supra), this Court rejected this submission and held that the Speakerhas the jurisdiction to determine the disqualification petitions becauseGdisqualification relates to the date when the act constituting defection isalleged to have been committed:

“93. As such, there is no doubt that the disqualification relates tothe date when such act of defection takes place. The tendering ofresignation does not have a bearing on the jurisdiction of theHSpeaker in this regard. At this point we may allude to the case of

D. Sanjeevayya v. Election Tribunal [D. Sanjeevayya v. ElectionTribunal, AIR 1967 SC 1211] , wherein this Court has held that :(AIR pp. 1213-14, para 5)

“5. It is, therefore, not permissible, in the present case, to interpretSection 150 of the Act in isolation without reference to Part III ofthe Act which prescribes the machinery for calling in question theelection of a returned candidate. When an election petition hasbeen referred to a Tribunal by the Election Commission and theformer is seized of the matter, the petition has to be disposed ofaccording to law. The Tribunal has to adjudge at the conclusion ofthe proceeding whether the returned candidate has or has notcommitted any corrupt practice at the election and secondly, ithas to decide whether the second respondent should or should notbe declared to have been duly elected. A returned candidate cannotget rid of an election petition filed against him by resigning hisseat in the legislature, whatever the reason for his resignationmay be.”

Therefore, the aforesaid principle may be adopted accordingly,wherein the taint of disqualification does not vaporise, onresignation, provided the defection has happened prior to the dateof resignation.”

203. The decision in Shrimanth Balasaheb Patil (supra) appliedthe principle that disqualification relates to the date on which the act ofdefection takes place to mean that acts or events subsequent to thecommission of the conduct prohibited under the Tenth Schedule, do nothave an exculpatory effect. In other words, subsequent acts or eventsdo not have the effect of curing such conduct or releasing the actorfrom the consequences which follow. This is consistent with the decisionin Rajendra Singh Rana(supra). Mr. Shinde’s appointment is thereforenot barred by Article 164(1B) of the Constitution.

b. The Governor did not exceed the scope of his authority

204. The petitioners submit that the Governor has exceeded thescope of his authority by inviting Mr. Shinde to form the governmentbecause:

a.The President of the Shiv Sena, Mr. Thackeray, was not infavour of a government formed in coalition with the BJP.

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AHowever, the group led by Mr. Shinde was in favour ofsuch an alliance. By inviting Mr. Shinde to form thegovernment, the Governor has de facto recognized the groupled by him as the “real” Shiv Sena; and b.The Governor is not empowered to recognize the legitimacyBof one faction over another. The ECI is the appropriateauthority to determine which of the two factions constitute the Shiv Sena.

205. The BJP returned one hundred and six candidates to theMaharashtra Legislative Assembly, the highest amongst all politicalCparties. It formed the primary opposition party in the House. By a letterdated 30 June 2022, the then Leader of Opposition, Mr. Fadnavis, wroteto the Governor claiming that one hundred and six MLAs of the BJPextend their support to Mr. Eknath Shinde for the formation of agovernment headed by Mr. Shinde. Eight independent candidates alsoextended their support to a government helmed by Mr. Shinde. On theDsame day, Mr. Shinde wrote to the Governor seeking to be called toform the Government. Based on the material before him, that is, thecommunications received, the Governor invited Mr. Shinde to take theoath of office, and directed him to prove his majority on the floor of theHouse within a period of seven days. The post of the Chief Minister ofEthe State of Maharashtra fell vacant after the resignation of Mr.Thackeray on 29 June 2022. The leader of the party that had returnedthe highest number of candidates to the State Assembly extended supporton behalf of the party to Mr. Shinde. Thus, the decision of the Governordated 30 June 2022 inviting Mr. Shinde to form the Government wasjustified.F

F. Conclusions

206. In view of the discussion above, the following are ourconclusions:

a.The correctness of the decision in Nabam Rebia (supra)Gis referred to a larger Bench of seven judges; b.This Court cannot ordinarily adjudicate petitions fordisqualification under the Tenth Schedule in the firstinstance. There are no extraordinary circumstances in theinstant case that warrant the exercise of jurisdiction by thisHCourt to adjudicate disqualification petitions. The Speaker must decide disqualification petitions within a reasonableperiod; .

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c.An MLA has the right to participate in the proceedings ofthe House regardless of the pendency of any petitions fortheir disqualification. The validity of the proceedings of theHouse in the interregnum is not “subject to” the outcomeBof the disqualification petitions; d.The political party and not the legislature party appoints theWhip and the Leader of the party in the House. Further,the direction to vote in a particular manner or to abstainfrom voting is issued by the political party and not thelegislature party. The decision of the Speaker ascommunicated by the Deputy Secretary to the MaharashtraLegislative Assembly dated 3 July 2022 is contrary to law.The Speaker shall recognize the Whip and the Leader whoare duly authorised by the Shiv Sena political party withreference to the provisions of the party constitution, afterconducting an enquiry in this regard and in keeping with theprinciples discussed in this judgement; C

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e.The Speaker and the ECI are empowered to concurrentlyadjudicate on the petitions before them under the TenthSchedule and under Paragraph 15 of the Symbols OrderErespectively; f.While adjudicating petitions under Paragraph 15 of theSymbols Order, the ECI may apply a test that is best suitedto the facts and circumstances of the case before it; F

g.The effect of the deletion of Paragraph 3 of the TenthSchedule is that the defence of ‘split’ is no longer availableto members facing disqualification proceedings. TheSpeaker would prima facie determine who the political partyis for the purpose of adjudicating disqualification petitionsunder Paragraph 2(1) of the Tenth Schedule, where two ormore factions claim to be that political party; G

h.The Governor was not justified in calling upon Mr.Thackeray to prove his majority on the floor of the Housebecause he did not have reasons based on objective materialbefore him, to reach the conclusion that Mr. Thackeray H

Ahad lost the confidence of the House. However, the statusquo ante cannot be restored because Mr. Thackeray didnot face the floor test and tendered his resignation; and

i.The Governor was justified in inviting Mr. Shinde to formthe government.

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207. This batch of Writ Petitions is disposed of in terms of theconclusions and directions recorded above.

208. Pending applications, if any, stand disposed of.

CBibhuti Bhushan Bose

(Assisted by : Spoorthi Cotha and Rahul Rathi, LCRAs)

Writ petitions disposed of.

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