SUBHASH DESAI VS PRINCIPAL SECRETARY, GOVERNOR OF MAHARASTRA : CASE SUMMARY
The Supreme Court held in Subhash Desai Vs. Principal Secretary, Governor of Maharastra (2023) 8 SCR 857 held that (i) Speaker is empowered to determine disqualification under 10th Schedule in the first instance , (ii) Political Party has to right to issue whip, (iii) Election Commission of India (ECI) and Speaker has concurrent power to determine award of symbol and disqualification respectively (iv) Governor has wrongly called upon Mr. Uddhava Tackarey to prove confidence in the Legislative Assembly and (v) referred Nabam Rebia Vs. Deputy Speaker (2016) 8SCC 1 to larger Bench.
FACTS OF THE CASE
14th Legislative Elections was conducted in October, 2019. Of 280 seats, BJP won 106 seats, Shiv Sena won 56 sears, NCP won 53 seats and INC 44 seats. Shiv Sena, NCP and INC formed a post-poll alliance which came to be known as Maha Vikas Aghadi. MVS successfully formed government with Mr. Uddhav Thackeray as Chief Minister. Mr Eknath Shinde was appointed as Leader of Shiv Sena Legislature Party (SSLP). Mr. Sunil Prabhu was appointed as Chief Whip.
SSLP fractured into factions. One led by Sh. Uddhav Thackeray and another led by Sh. Eknath Shinde. On 21st June, 2022 Meeting of MLA was called wherein Eknath Shinde was removed as Leader of SSLP. The decision was communicated to the Deputy Speaker, which was accepted by Deputy Speaker.
Concurrently, on the same date meeting of Shinde Group was conducted in Assam and Sh. Eknath Shinde was re-confirmed as Leader of SSLP and Sunil Prabhu was replaced with Bharat Gogawale. Shinde Group claimed that information regarding the same was shared with Deputy Speaker on 21st June, 2022 while Uddhava group claims that information was received on 22nd June, 2022.
On 23rd June, 2022 Sunil Prabhu filed Petition under 10th Schedule for disqualification of 15 MLA. On 27th June, Respondents filed Writ Petitions under Article 32 of the Constitution challenging the disqualification notices.
Sunil Prabhu again filed Petition for disqualification of two independent MLA, one MLA of Prahar Janshakti, and 22 MLA of Shiv Sena. On 28th June, 2022 Leader of Opposition wrote letter to the Governor claiming that Mr. Uddhava Thackrey did not enjoy confidence of majority requested for directing Mr. Uddhava Thackery to prove the same. The Governor directed Mr. Uddhava Thackrey to prove majority on 30th June, 2022.
On 29th June, 2022 , Sunil Prabhu filed Writ Petition before the Supreme Court for setting aside communication dated 28th June, 2022 by the Governor on the ground that disqualification petitions of 42 members were pending for determination. The Court declined to stay the trust vote. Sh. Uddhav Thackrey resigned.
On 30th June, 2022, Governor administered oath of office to Mr. Shinde and Mr. Fadnavis and Chief Minister and Deputy Chief Minister respectively. Suresh Prabhu issued two whips – one to vote against motion of confidence on 4th Juny, 2022 and another to vote for speaker candidate for Shiv Shena (Uddhava Group) Mr. Rajan Salvi scheduled on 3rd July, 2022. Mr. Rahul Narvekar of BJP emerged victorious for the post of speaker. 39 MLA of Shiv Sena voted in favour of Rahul Narvekar. Mr Suresh Prabhu initiated fresh disqualifications against these MLA. After assuming post of speaker, Mr. Rahul Narvekar appointed Eknath Shinde as leader of SSLP and recognized Bharat Gogawale as chief whip. On 4th July, Mr. Eknath Shinde won the confidence motion. Mr. Suresh Prabhu moved fresh disqualification again 39 MLA. Mr. Bharat Gogawale also moved petitions for disqualification of 14 MLA. On 19th July,, 2022, Mr. Eknath Shinde filed Petition before ECI for allotment of symbol of Shiv Sena (bow and arrow) , which was allowed by Election Commission.
The Supreme Court was considering six different writ petitions connected with this matter.
FINDINGS OF THE SUPREME COURT
Determination of Disqualification under Tenth Schedule
It was contended that the Supreme Court should decide the disqualification Petitions. The Supreme Court relying on Kihoto Hollohan Vs Zachillhu (1992) Supp SCC 651 observed that the Speaker is expected to act fairly, independently and impartially while adjudicating the disqualification applications under the Tenth Schedule. Ultimately, the decision of the Speaker on the question of disqualification is subject to judicial review. The Supreme Court was of the opinion that the Speaker of Maharastra Legislative Assembly is the appropriate authority to decide the question of disqualification under the 10th Schedule.
The Supreme Court observed that Article 191 (2) provides that a person shall be disqualified for being a member of the Legislative Assembly if they are so disqualified under the Tenth Schedule. Article 190 (3) stipulates that if an MLA incurs a disqualification under the provisions of Article 191 (2) read with Tenth Schedule their seat shall thereupon become vacant. The term “thereupon” denotes that the seat becomes vacant only from such date when the Speaker decides the disqualification petition. An MLA has the right to participate in the proceedings of the House until they are disqualified.
The Supreme Court observed that Parliament undertakes innumerable functions on the floor of the House, including passing legislations and approving the annual budget. These actions of the legislators are irrevocable except in accordance with law. The constitutional sanctity of the proceedings in Parliament 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 decision would lead to chaos. The action of the House in electing the Speaker, Mr. Rahul Narwekar is not invalid merely because some MLAs who participated in the election faced disqualification proceedings.
Appointment of Whip
The Supreme Court observed that political party and legislative party can not be conflated. A whip can be appointed by the political party. The entire structure of the Tenth Schedule which is built on political parties would crumble if this requirement is not complied with.
The Supreme Court held that the decision of the speaker recognizing Mr. Gogawale as the chief whip of the Shiv Sena is illegal because the recognition was based on the resolution of the faction of the SSLP without undertaking an exercise to determine if it was the decision of the political party.
Concurrent Jurisdiction of Speaker and ECI
The Speaker and the ECI are empowered to concurrently adjudicate on the petitions before them under the Tenth Schedule and awarding of Symbols respectively
The Supreme Court observed that the purpose of the Symbols Order is to provide a uniform procedure for the recognition of political parties and to provide a uniform and just system for allotment of symbols for candidates to contest in elections. In order to reach a determination as to which group is entitled to the symbol, it becomes necessary for the ECI to adjudicate which group is the political party itself. In other words, the ECI determines who the “real” political party is and the symbol is allotted as a consequence of this decision.
The Supreme Court observed that subsequent to the decision in Sadiq Ali Vs Election Commission of India (1972) 4 SCC 664 the Election Commission consistently applied test of majority in the legislature and organizational wings of the party to disputes. However, ECI may apply a test which is suitable to the facts of the particular dispute before it. It need not apply the same test to all disputes regardless of the suitability of the test to those facts and circumstances.
The Decision of the Governor
The Supreme Court held that Governor was not justified in calling upon Mr. Thackeray to prove his majority on the floor of the House because he did not have reasons based on objective material before him, to reach conclusion that Mr. Thackeray had lost the confidence of the House. However, the status quo ante cannot be restored because Mr. Thackeray did not face the floor test and tendered his resignation. The Supreme Court also referred Nabam Rebia judgment to larger bench to seven judges wherein it has been held that it is permissible for a speaker to adjudicate upon disqualification petitions under Tenth Schedule after a notice of intention to move a resolution for their removal from the office of the Speaker is issued.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.