TaxTMI 
TaxTMI 
2023 (5) TMI 1502
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.... Anand Tiwari, Adv. Mr. Javedur Rahman, AOR Mr. Rajesh Inamdar, Adv. Mr. Sunny Jain, Adv. Mr. Dharmendra Mishra, Adv. Mr. Amit Bhandari, Adv. Mr. Nizam Pasha, Adv. Mr. Harsh Pandey, Adv. Mr. Revanta Solanki, Adv. Mr. Siddharth Kaushik, Adv. Ms. Aparajita Jamwal, Adv. Mr. Nikhil Purohit, Adv. Mr. Ashok Kumar, Adv. Ms. Devyani Gupta, Adv. Ms. Tanvi Anand, Adv. Mr. Siddharth Seem, Adv. Mr. L. Nidhiram Sharma, Adv. Mr. Aman Sharma, Adv. Mr. Ashima Chauhan Singh, Adv. Mr. Mudassir, Adv. Mr. Neeraj Kishan Kaul, Sr. Adv. Mr. Maninder Singh, Sr. Adv. Mr. Siddharth Bhatnagar, Sr. Adv. Mr. Abhikalp Pratap Singh, AOR Mr. Abhay Anturkar, Adv. Mr. Parbhas Bajaj, Adv. Mr. Dhruv Sharma, Adv. Ms. Ira Mahajan, Adv. Mr. Raghav Agrawal, Adv. Mr. Toshiv Goyal, Adv. Ms. Manmeet Kaur Sareen, Adv. Mr. Navneet R, Adv. Ms. Shreya Saxena, Adv. Ms. Yamini Singh, Adv. Ms. Pritha Suri, Adv. Mr. Rangsar An Mohan, Adv. Mr. Ramchandr Madan, Adv. Ms. Vijetha Ravi, Adv. Mr. Ajay Sabharwal, Adv. Mr. Harish Salve, Sr. Adv. Mr. Neeraj Kishan Kaul, Sr. Adv. Mr. Mahesh Jethmalani, Sr. Adv. Mr. Maninder Singh, Sr. Adv. Mr. Siddharth Bhatnagar, Sr. Adv. Ms. Malvika Trivedi, Sr. Adv. Mr. Chirag J Shah, Adv. Mr. Utsav Trive....
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...., SG Mr. K.M. Nataraj, ASG Mr. Kanu Agarwal, Adv. Mr. Rajat Nair, Adv. Mr. Anirudh Bhat, Adv. Mr. Akshit Pradhan, Adv. Mr. Shreeyash U Lalit, Adv. Ms. Ruchi Gour Narula, Adv. Mr. Arvind Kumar Sharma, AOR Mr. T. R. B. Sivakumar, AOR Mr. Shreyas Gacche, Adv. Mr. Rajsaheb Patil, Adv. Mr. Supriya Wankhede, Adv. Mr. Sudarshan Kute, Adv. Mr. Ashok Kumar Gupta Ii, AOR Mr. Kailash Prashad Pandey, AOR Mr. Mahendra Kawchale, Adv. Mr. Vijay Pal, Adv. Mr. Pramod Kumar Singh, Adv. Mr. Anil Kumar, Adv. Mr. Umang Tripathi, Adv. Mr. Deepankar, Adv. Ms. Rekha Agarwal, Adv. Mr. Karunesh Kumar Shukla, Adv. Mr. Amit Garg, Adv. Mr. Firasat Ali Siddiqi, Adv. Mr. Kundan Lal Gupta, Adv. Mr. Vimal Kishore Rastogi, Adv. Dr. A.P. Singh, Adv. Mr. V.P. Singh, Adv. Mrs. Richa Singh, Adv. Mrs. Geeta Chauhan, Adv. Mr. Sadashiv, AOR Mr. Aaditya Aniruddha Pande, AOR Mr. Bharat Bagla, Adv. Mr. Sourav Singh, Adv. Mr. Pankaj Kuma Singh, Adv. Mr. Mukesh Verma, Adv. Mr. Pawan Kumar Shukla, Adv. Mr. Kamal Kumar Pandey, Adv. Mr. S.C. Tripathi, Adv. Mr. Gaurav Belsare, Adv. Mr. Manindra Dubey, Adv. Mr. Raj Singh Rana, AOR Mrs. Pragya Verma, Adv. JUDGMENT Dr. Dhananjaya Y Chandrachud, CJI Table of Contents A. Fa....
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....the Tenth Schedule ....................... 114 a. The defence of a 'split' is no longer available to members who face disqualification proceedings ....................... 118 b. The decision of the Speaker under Paragraph 2 of the Tenth Schedule ....................... 119 vii. The exercise of discretion by the Governor in directing Mr. Thackeray to face a floor test ....................... 121 a. The power of the Governor to call for a floor test ....................... 123 b. The Governor's exercise of the power to call for a floor test ....................... 127 viii. The exercise of discretion by the Governor in inviting Mr. Shinde to be the Chief Minister ....................... 133 a. Mr. Shinde's appointment is not barred by Article 164(1B) of the Constitution ....................... 134 b. The Governor did not exceed the scope of his authority ....................... 137 F. Conclusions ....................... 139 1. The Writ Petitions instituted before this Court under Article 32 of the Constitution arise from the political imbroglio in the State Legislature of Maharashtra. A coal....
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....arty ["SSLP"] and that Mr. Sunil Prabhu was appointed as the Chief Whip of the SSLP. 4. The MVA continued to govern the State of Maharashtra until June 2022, when news reports revealed that some MLAs who belonged to the Shiv Sena were meeting with leaders of the BJP. At this time, the office of the Speaker lay vacant, and the functions of the Speaker were being discharged by the Deputy Speaker, Mr. Narhari Zirwal. 5. The events which followed indicate that the SSLP fractured into two factions: one led by the then Chief Minister, Mr. Uddhav Thackeray, and the other led by the Group Leader of the SSLP, Mr. Eknath Shinde. Each faction claimed to represent the "real" political party and passed various resolutions pertaining to the affairs of the SSLP. For ease of reference, we refer to the faction led by Mr. Thackeray as 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. Sunil Prabhu, issued a whip directing all MLAs of the Shiv Sena to attend a meeting 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 we....
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....easons in writing, communicated in advance to the undersigned, will result in consequential action against you under the relevant provisions of the Constitution of India." The meeting on 22 June 2022, too, was not attended by many MLAs of the Shiv Sena including Mr. Eknath Shinde. 11. Mr. Eknath Shinde addressed a letter to Mr. Sunil Prabhu on 22 June 2022 accusing him of misusing the letterhead of the SSLP. The letter stated that: a. A meeting of forty-five MLAs of the Shiv Sena was held under the chairmanship of Mr. Eknath Shinde; b. Mr. Sunil Prabhu was removed from the position of Chief Whip of the Shiv Sena; c. Mr. Bharat Gogawale was appointed as the Chief Whip of the Shiv Sena in place of Mr. Sunil Prabhu; and d. Mr. Sunil Prabhu did not have the authority to sign the communication dated 22 June 2022 (issued by him to all MLAs of the Shiv Sena). It was therefore not binding upon Mr. Eknath Shinde to attend the meeting scheduled to take place at Mr. Thackeray's residence. 12. On 23 June 2022, Mr. Sunil Prabhu filed petitions under Paragraph 2(1)(a) of the Tenth Schedule to the Constitution for the disqualification of Mr. Eknath....
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.... short period of time and the trust vote is concluded on 30.06.2022 by 5:00 PM. (iii) The voting will be conducted by asking Members to rise in their seats for the purpose of counting votes as contemplated under the Maharashtra Legislative Assembly Rules. (iv) The Proceedings have to be live telecast, and appropriate arrangements are to be made to ensure the same. (v) The entire proceedings of the trust vote shall be videographed by the Vidhan Sabha Secretariat through an independent agency and shall be submitted to me. (vi) The aforesaid proceedings shall be started on 30.06.2022 at 11:00 AM and no case shall be same be adjourned, delayed or suspended. (vii) Adequate arrangements shall be made for the security of the Members both outside and inside the Vidhan Bhavan to ensure smooth conducting of the floor test." The Governor also issued a communication dated 28 June 2022 to the Secretary, Maharashtra Legislative Assembly calling upon him to make necessary arrangements for the session of the Maharashtra Legislative Assembly at which the floor test was to be conducted. 17. On the very next day (29 June 2022), Mr. Sunil Prabhu insti....
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....on 30 June 2022 and they assumed the roles of Chief Minister and Deputy Chief Minister of Maharashtra, respectively. On the same day, Mr. Thackeray issued a letter to Mr. Shinde stating that he had been removed from the post of 'Shiv Sena Leader' in the organisational structure of the party. Mr. Thackeray similarly removed other MLAs of the Shiv Sena from their roles as office-bearers of the party. ii. The election of the Speaker 20. Later that week, the Principal Secretary of the Maharashtra Legislative Assembly circulated the working order for the session which was scheduled to take place on 3 July 2022. The fifth item on the agenda reflected that the election for the post of the Speaker was to be conducted. An MLA belonging to the BJP nominated Mr. Rahul Narwekar of the BJP for this position while an MLA of the Shiv Sena (ostensibly from Mr. Thackeray's faction) nominated Mr. Rajan Salvi of the Shiv Sena. Further, a motion of confidence for the Council of Ministers headed by the Chief Minister, Mr. Shinde, was scheduled to be moved in a session of the Assembly on 4 July 2022. 21. In view of the agenda for the sessions of the Assembly, Mr. Sunil Prabhu issued....
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....ief Minister, Mr. Shinde. 24. To summarize - in June 2022, Mr. Thackeray was the Chief Minister, Mr. Shinde was the Leader of the SSLP, and Mr. Sunil Prabhu was 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 as the Leader of the SSLP and subsequently replaced by Mr. Shinde, and Mr. Bharat Gogawale was recognized as the Chief Whip in place of Mr. Sunil Prabhu. Each faction continued to claim that the appointments made by them and communicated to the Speaker or the Deputy Speaker, as the case may be, were legal and valid, and that the appointments made 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 the Shiv Sena who belonged to Mr. Thackeray's faction issued (on two different occasions) notices of intention to move a resolution for the removal of Mr. Rahul Narwekar from the office of the Speaker under Article 179(c) of the Constitution read with Rule 11 of the Maharashtra Legislative Assembly Rules 2019....
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.... c. Quash the proceedings of the Maharashtra Legislative Assembly held on 4 July 2022, and consequently the Confidence Motion in favour of Mr. Eknath Shinde; and/or d. Call for the records of all pending disqualification petitions filed against Eknath Shinde and the other MLAs led by him pending before the Speaker and the Deputy Speaker under Paragraph 2(1)(a) and Paragraph 2(1)(b) of the Tenth Schedule and transfer these petitions to this Court under Article 142 of the Constitution and decide them. WP(C) 469 of 2022 a. Direct the Deputy Speaker to not take any action in the petition for disqualification of Mr. Eknath Shinde under Paragraph 2(1)(a) of the Tenth Schedule until the resolution for the removal of the Deputy Speaker is decided; b. In the interim, stay the effect and operation of the notice dated 25 June 2022 issued by the Deputy Speaker to Eknath Shinde; c. Quash the letter / order dated 21 June 2022 passed by the Deputy Speaker accepting the appointment of Mr. Ajay Choudhari as the Leader of Shiv Sena Legislature Party; d. In the interim, stay the effect and operation of the letter/order dated 21 June 2022 passed by the Depu....
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.... a. Whether a notice for removal of a Speaker restricts them from continuing with disqualification proceedings under Tenth Schedule of the Constitution, as held by this Court in Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly; [(2016) 8 SCC 1] b. Whether a petition under Article 226 or Article 32 lies, inviting a decision on a disqualification petition by the High Courts or the Supreme Court, as the case may be; c. Can a court hold that a member is "deemed" to be disqualified, by virtue of his/her actions, absent a decision by the Speaker; d. What is the status of proceedings in the House during the pendency of disqualification petitions against the members; e. If the decision of a Speaker that a member has incurred disqualification under the Tenth Schedule relates back to the date of the action complained of, then what is the status of proceedings that took place during the pendency of a disqualification petition; f. What is the impact of the removal of Paragraph 3 of the Tenth Schedule; g. What is the scope of the power of the Speaker to determine the Whip and the leader of the house ....
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....emoval of the Speaker. This amounts to interference in disqualification proceedings at the interlocutory stage. The decisions in Kihoto Hollohan (supra) and Nabam Rebia (supra), therefore, conflict with one another; b. The decision in Nabam Rebia (supra) is prone to be misused by defecting MLAs, whose consequent disqualification under the Tenth Schedule can be avoided by disabling the Speaker from proceeding with disqualification proceedings by issuing a notice of intention to move a resolution for their removal under Article 179 of the Constitution. The Speaker is left without a remedy in case of their improper removal, while a disqualified member may access the remedy of judicial review if they have been unlawfully disqualified; c. By holding that the Speaker is disabled from proceeding with disqualification proceedings under the Tenth Schedule when a notice of intention to move a resolution for their removal is issued, Nabam Rebia (supra) has the effect of: i. Effacing the distinction between the role of the Speaker as a Tribunal under the Tenth Schedule and the role of the Speaker as an Officer of the State Legislature; ii. Disrupting the con....
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....sabling the Speaker from deciding disqualification petitions upon the issuance of a notice of intention to move a resolution for their removal does not conflict with the ruling in Kihoto Hollohan (supra) because the disablement of the Speaker does not amount to interference at the interlocutory stage; and e. In Nabam Rebia (supra), the Constitution Bench addressed the issue pertaining to the role of the Speaker when disqualification proceedings are initiated against MLAs. The issue has ceased to be a "substantial question of law" and cannot be referred to a larger bench under Article 145(3) of the Constitution. 37. Mr. Tushar Mehta, the learned Solicitor General, appeared for the Governor of the State of Maharashtra and urged that Nabam Rebia (supra) did not warrant a reference to a larger Bench for the following 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 misuse of the temporary disablement of the Speaker; c. The assertion that Nabam Rebia (supra) protects a me....
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....inde as the Chief Minister on 30 June 2022, the appointment of the Speaker on 3 July 2022, the floor test held on 4 July 2022, and the petition filed by a faction led by Mr. Eknath Shinde under Paragraph 15 of the Symbols Order, have been challenged before this court; ii. The Speaker was appointed with the support of the faction of the Shiv Sena legislators led by Mr. Eknath Shinde. The Speaker has conducted himself in a biased and mala fide manner. In a communication dated 3 July 2022, the Speaker de-recognised Mr. Ajay Choudhari and Mr. Sunil Prabhu as the Leader of the SSLP and the Chief Whip of the Shiv Sena respectively, and instead recognised Mr. Eknath Shinde and Mr. Bharat Gogawale respectively. The decision of the Speaker in the disqualification proceedings would depend on who was recognized as the Chief Whip which is also under challenge in the instant batch of proceedings; iii. A Constitutional Court while deciding disqualification petitions must decide if a per se case of disqualification is made out against the MLAs; iv. In the facts of the present case, a per se case of disqualification is made out under Paragraph 2(1)(a) of the Tenth Schedu....
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....July 2022 recognising Mr. Gogawale as the Chief Whip are illegal and must be set aside. The Chief Whip and the Leader of the legislature party must be appointed by the political party and not the legislature party because: i. Paragraph 2(1)(b) of the Tenth Schedule stipulates that the whip must be issued by the political party (and not the legislature party) or by an authority authorised by the political party. Thus, the whip cannot be issued or altered by a majority of the legislature party. Paragraphs 1(b) and 1(c) differentiate between a legislature party and a political party for the purposes of the Tenth Schedule. This reading of the Tenth Schedule has been affirmed by Srinivasan, J. in his separate opinion in Mayawati v. Markandeya Chand; [(1998) 7 SCC 517] ii. A majority faction of the legislature party cannot be construed as the political party for the purposes of the Tenth Schedule; iii. The explanation to Section 23 of the Maharashtra Legislature Members (Removal of Disqualification) Act 1956 ["Act of 1956"] provides that the Chief Whip in relation to the Maharashtra Legislative Assembly means a member of the House who has been declared as the W....
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....ect to judicial review and is liable to be quashed if it is based on extraneous considerations. The Governor's decision to call for a floor test on 28 June 2022 was illegal because: i. The resolution of thirty-four members of the SSLP which is relied upon by the Governor does not state that they intend to exit the MVA; and ii. The Governor cannot base his satisfaction on a claim of a majority of the SSLP against the government formed by their own political party; f. The communication of the Governor dated 30 June 2022 calling Mr. Eknath Shinde to take oath as the Chief Minister is unconstitutional and ought to be set aside for the following reasons: i. The Governor calling Mr. Shinde to take oath amounts to a recognition of a split in the Shiv Sena; ii. The Governor could not have called Mr. Shinde to form the Government when a disqualification petition was pending against him; iii. The recommendations of the Sarkaria Commission on the order of preference in which the Governor ought to call for the formation of the government were approved by this Court in Rameshwar Prasad v. Union of India. [(2006) 2 SCC 1] The Governor did....
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....2, Mr. Rahul Narwekar recalled the order of the Deputy Speaker dated 21 June 2022 recognising Mr. Ajay Choudhari as the Leader of SSLP and Mr. Bharat Gogawale as the Chief Whip of the SSLP. The validity of the order of the Deputy Speaker dated 21 June 2022 was sub judice before this Court. Further, upon his appointment, the Speaker issued notice only on the disqualification petitions instituted by the respondents. The Speaker has behaved contrary to the spirit of neutrality and independence. Allowing the Speaker to decide the disqualification petition would amount to incentivising defection. Thus, this Court and not the Speaker must decide the disqualification petitions; c. The Governor could not have directed a trust vote when the legality of the disqualification petitions was pending consideration; d. The letter of the Governor dated 28 June 2022 recognises a split in the Shiv Sena. He does not have the authority to recognise a split; e. The majority in S R Bommai v. Union of India [(1994) 3 SCC 1] held that it would be open to the Court to restore status quo ante before the issuance of the proclamation if the presidential proclamation was invalid. It w....
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....e leadership structure subsisting on the date of the alleged prohibited conduct until the recognition of the political party and its leadership structure is altered under the law; b. The members of the legislature party cannot claim that they represent the political party as a defence to the disqualification petitions instituted against them. Any such faction is only entitled to advance such a claim before the ECI in proceedings under the Symbols Order. The members cannot indulge in conduct that is prohibited under the Tenth Schedule until their claim is settled under the Symbols Order; c. The Tenth Schedule will be put on a hiatus if the contention of the respondents that the disqualification petitions depend on the adjudication of their claim under Paragraph 15 of the Symbols Order is accepted; and d. The respondents could not have initiated proceedings under Paragraph 15 of the Symbols Order when disqualification petitions are pending against them since the factor of legislative majority laid down in Sadiq Ali v. Election Commission of India [(1972) 4 SCC 664] may be altered based on the adjudication of the disqualification proceedings. 43. Mr. Neer....
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.... factions of a political party according to the provisions of the Symbols Order; e. A majority of a legislature party may appoint the Leader and the Chief Whip of the legislature party. The 1986 Rules provide that only the members of the legislature party shall choose their Leader. When the Leader and the Chief Whip are elected by the majority of the legislature party, the Speaker must take a prima facie view and grant recognition to such Leader and Chief Whip for the purposes of the Tenth Schedule. The Speaker has no choice but to appoint a Leader and a Chief Whip elected by a majority of the members of the legislature party; and f. The decision of the Governor calling Mr. Eknath Shinde to form the Government is valid and cannot be called into question because: i. Mr. Thackeray resigned on 29 June 2022 without facing the floor test; ii. On the resignation of Mr. Thackeray, it was the constitutional duty of the Governor to call upon another person who commanded the majority in the Legislative Assembly to form the government; and iii. Mr. Shinde staked his claim to form the government and subsequently proved his majority on the floor of t....
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....d. The decision of the Governor to administer the oath of office to Mr. Shinde cannot be called into question as it was based on the following objective facts: i. The letter dated 30 June 2022 by Mr. Devendra Fadnavis extending support to Mr. Eknath Shinde for the formation of the government by the latter; ii. The letter dated 30 June 2022 by Mr. Eknath Shinde informing the Governor that he enjoys the support of a majority of the MLAs and requesting the Governor to invite him to take oath as Chief Minister; and iii. The letters dated 30 June 2022 by seventeen independent MLAs and MLAs from other parties supporting Mr. Eknath Shinde. 45. Mr. Maninder Singh, learned senior counsel for the respondents made the following submissions: a. The disqualification petitions under the Tenth Schedule must be decided by the Speaker. Reliance by the petitioners on Rajendra Singh Rana (supra) is erroneous because in that case, the disqualification petitions were already decided by the Speaker. It was only in appeal that this Court decided the issue of disqualification instead of remanding the matter back to the Speaker; b. The disqualification of a m....
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....ition was filed against the remaining twenty-three MLAs. 47. Mr. Harish Salve, learned senior counsel for the respondents made the following submissions: a. During the pendency of the disqualification petitions, MLAs are entitled to participate in the proceedings of the House. Article 189(2) of the Constitution indicates that the subsequent disqualification of a member does not vitiate any actions in the House; and b. The petitioners argued that but for the interim order of the Supreme Court, the disqualification would have followed, that Mr. Thackeray would not have resigned, and that he would have survived the trust vote. This Court should not enter into the realm of speculation while deciding constitutional matters. In the eventuality that Mr. Thackeray faced the floor test, he would not have had the support of the majority of the legislators. Mr. Thackeray's resignation on the eve of the trust vote is a testament to the fact that he had lost the confidence of the House. E. Analysis i. Reference of Nabam Rebia's case to a larger Bench 48. Article 179 stipulates that a Speaker (or a Deputy Speaker) may be removed from their office by a resolu....
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.... It was in this context that Nabam Rebia (supra) came to be decided. A Constitution Bench of this Court in that case (speaking through the majority opinion authored by Khehar, J. and the concurring opinion by Misra, J., as the learned Chief Justices then were) inter alia ruled that it was impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule after a notice of intention to move a resolution for their removal from the office of the Speaker was issued. 52. Khehar, J. grounded his opinion on constitutional and moral reasoning. The learned Judge observed that when the position of the Speaker is under challenge, it would "seem" just and proper for the Speaker to establish their right to continue before adjudicating on the disqualification petition(s) pending before them: "189. When the position of a Speaker is under challenge, through a notice of resolution for his removal, it would "seem" just and appropriate, that the Speaker first demonstrates his right to continue as such, by winning support of the majority in the State Legislature. The action of the Speaker in continuing, with one or more disqualification petitions under the T....
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....the express mandate of Article 179(c), requiring all "the then Members" to determine the right of the Speaker to continue." 54. The opinion of the majority further noted that the purpose sought to be achieved through the Tenth Schedule is clear and unambiguous, and that it is distinct from the purpose sought to be achieved by Article 179(c): "192. The purpose sought to be achieved through the Tenth Schedule, is clear and unambiguous. The same is unrelated to, and distinct from, the purpose sought to be achieved through Article 179(c). Neither of the above provisions, can be seen as conflicting with the other. Both, must, therefore, freely operate within their individual constitutional space. Each of them will have to be interpreted, in a manner as would serve the object sought to be achieved, without treading into the constitutional expanse of the other. The interpretation would have to be such, as would maintain constitutional purpose and harmony." 55. Khehar, J. observed that if the Speaker decided a disqualification petition before surviving the vote, it would prejudice the MLAs facing disqualification but not the Speaker. The disqualified MLAs would not ....
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....be referred to a larger Bench until the hearing on the merits of the case was concluded. 59. Having considered the submissions advanced by counsel for all 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 Speaker performs the duties of the Speaker while the office of the Speaker is vacant. The functions of the Speaker include the adjudication of disqualification petitions. In the present case, the office of the Speaker of the Maharashtra Legislative Assembly was vacant and the Deputy Speaker Mr. Narhari Zirwal was discharging the functions of the Speaker. A notice of intention to move a resolution for his removal under Article 179 is stated to have been issued on 22 June 2022. Mr. Sunil Prabhu filed disqualification petitions against some of the MLAs led by Mr. Shinde on 23 June 2022. 61. The first circumstance commences with the notice dated 21 June 2022, under Article 179(c) asking the Deputy Speaker to refrain from discharging his functions. The reply of the Deputy Speaker is crucial. The relevant portion is as under: "In ....
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....ng two grounds. The first relates to the disability of the Speaker in proceeding with the hearing in view of the decision in Nabam Rebia (supra). The second ground relates to the legality of the summons issued by the Deputy Speaker granting only forty-eight hours for filing a written statement. What is important is the order passed by this Court on 27 June 2022 which is as under: "Meanwhile as an interim measure, the time granted by the Deputy Speaker of the Assembly to the petitioners or other similarly placed Members of the Legislative Assembly to submit their written submissions upto today by 5.30P.M., is extended till 12.07.2022." 65. It is clear that this Court did not injunct the Deputy Speaker from proceeding with the hearing of the cases under the Tenth Schedule. In fact, this Court merely extended the time for filing a written statement till 12 July 2022, which goes to show that this Court intended that the proceedings must go on. 66. The petitioners urge that that the order of this Court dated 27 June 2022 relied on the decision in Nabam Rebia (supra) to injunct the Deputy Speaker from adjudicating the disqualification petitions. This submission cannot be a....
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....22 by which the decision in Nabam Rebia (supra) was referred to a Constitution Bench. In that order, this Court formed a prima facie opinion that the proposition of law laid down in Nabam Rebia (supra) was based on "contradictory reasoning." The order of reference notes: "4. We may prima facie observe that the proposition of law laid down by the Constitution bench in Nabam Rebia (supra), stands on contradictory reasoning, which requires gap filling to uphold the constitutional morality. As such, this question needs a reference to a Constitution bench for the requisite gap filling exercise to be conducted." 70. Based on the submissions which have been canvassed before us, we are of the view that the decision in Nabam Rebia (supra) merits reference to a larger Bench because a substantial question of law remains to be settled. The following are our prima facie reasons for reaching this conclusion: a. Nabam Rebia (supra) is in conflict with the judgement in Kihoto Hollohan (supra) because the decision in Kihoto Hollohan (supra) holds that there is no reason to doubt the independence and impartiality of the Speaker when adjudicating on proceedings under the Tenth Sc....
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....ly after the dissolution. This Court did not consider if the Constitution envisages a restriction on the continuous performance of the functions of the Speaker under the Tenth Schedule in view of this provision; e. Rule 11 of the Maharashtra Legislative Assembly Rules stipulates that upon the expiry of the period of fourteen days provided under the proviso to Article 178, leave is granted to move the motion only when twenty-nine members vote in favour of it. This Court did not consider the possibility that a notice of intention to move a resolution for the removal of the Speaker may not culminate in such a motion being moved. The Speaker may be effectively barred from adjudicating disqualification petitions based on the mere issuance of a notice of intention to move a resolution by one member of the House; f. It appears that the following aspects were not considered in Nabam Rebia (supra): i. Whether the temporary disablement of the functions of the Speaker under the Tenth Schedule is prone to misuse by MLAs who anticipate that disqualification petitions will be instituted against them or by MLAs against whom disqualification petitions have already been i....
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.... entrusted with the adjudication of disqualification petitions because is biased and partial as he was appointed with the support of the MLAs against whom disqualification petitions have been filed. They have relied on Rajendra Singh Rana (supra) to argue that this Court should decide the disqualification petitions against the respondents. 74. Article 191(2) of the Constitution stipulates that an MLA disqualified under the Tenth Schedule shall be disqualified for being a member of the House. Under Paragraph 6 of the Tenth Schedule, the Speaker has the exclusive jurisdiction to decide the question of disqualification. Paragraph 8 empowers the Chairman or Speaker of the House to make rules on the procedure for deciding any question referred to in Paragraph 6 including the procedure for any inquiry which may be made for the purpose of deciding such question. In exercise of the powers conferred under Paragraph 8, the Speaker of the Maharashtra Legislative Assembly notified the 1986 Rules. 75. Rule 6 of the 1986 Rules lays down the procedure for the filing of disqualification petitions against a member of the House before the Speaker. Rule 7 provides that the Speaker may either di....
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....e BSP and recognized a separate group by the name of Lok Tantrik Bahujan Dal. The thirteen MLAs against whom disqualification petitions were instituted were also part of the Lok Tantrik Bahujan Dal. On 6 September 2003, the Speaker accepted the merger of the Lok Tantrik Bahujan Dal with the Samajwadi Party without deciding the disqualification petitions against the thirteen MLAs. On 7 September 2005, the Speaker rejected the disqualification petitions against the MLAs. By its judgment dated 28 February 2006, the High Court quashed the order of the Speaker rejecting the disqualification petitions against the MLAs and directed him to reconsider the petitions. 79. On appeal, this Court observed that it would not be appropriate for it to decide the disqualification petitions for the first time when the concerned authority had not taken a decision. It observed that this Court would normally remit the matter to the Speaker or Chairman to take a proper decision in accordance with law. However, this Court decided to adjudicate the disqualification petitions in view of the following peculiar facts and circumstances: (i) the Speaker of the Legislative Assembly in that case failed to decid....
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....hall, as soon as may be, choose two members of the Assembly to be the Speaker and Deputy Speaker. The procedure for the election of Speaker and the Deputy Speaker is generally provided by the relevant rules of the Legislative Assembly. 82. In a parliamentary democracy, the Speaker is an officer of the Assembly. The Speaker performs the function of presiding over the proceedings of the House and representing the House for all intents and purposes. In Kihoto Hollohan (supra), it was contended that the Speaker does not represent an independent adjudicatory machinery since they are elected by the majority of the Assembly. Rejecting the argument, this Court emphasized that the office of the Speaker is held in high respect in parliamentary tradition. The Court held that the Speaker embodies propriety and impartiality and that it was therefore inappropriate to express distrust in the office of the Speaker: "118. It would, indeed, be unfair to the high traditions of that great office to say that the investiture in it of this jurisdiction would be vitiated for violation of a basic feature of democracy. It is inappropriate to express distrust in the high office of the Speaker, me....
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....ualification under the Tenth Schedule from being an MLA and consequently minister must first be decided by the exclusive authority in this behalf, namely, the Speaker of the Manipur Legislative Assembly. It is also not possible to accede to the argument of Shri Sibal that the disqualification petition be decided by this Court in these appeals given the inaction of the Speaker. It cannot be said that the facts in the present case are similar to the facts in Rajinder Singh Rana (supra). In the present case, the life of the legislative assembly comes to an end only in March, 2022 unlike in Rajinder Singh Rana (supra) where, but for this Court deciding the disqualification petition in effect, no relief could have been given to the petitioner in that case as the life of the legislative assembly was about to come to an end. The only relief that can be given in these appeals is that the Speaker of the Manipur Legislative Assembly be directed to decide the disqualification petitions pending before him within a period of four weeks from the date on which this judgment is intimated to him. In case no decision is forthcoming even after a period of four weeks, it will be open to any party to t....
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....ough the MLAs cannot be barred from participating in the proceedings of the House merely on the initiation of disqualification petitions against them, the outcome of such proceedings will be subject to the decision of the Speaker in the pending disqualification petitions. It is important to understand the context in which this Court decided Rajendra Singh Rana (supra) to appreciate the gamut of its observations. 87. A coalition Government, headed by the leader of the BSP, Ms. Mayawati, was formed in May 2002 pursuant to the elections to the 14th Legislative Assembly of Uttar Pradesh. On 27 August 2003, thirteen MLAs of the BSP wrote to the Governor requesting him to invite the Leader of the Samajwadi Party to form the Government. On 4 September 2003, the leader of the BSP filed disqualification petitions against the thirteen MLAs under the provisions of Paragraph 2(1)(a) of the Tenth Schedule. On 6 September 2003, thirty-seven MLAs of the BSP filed a claim before the Speaker for recognition of a split in the party. They claimed that pursuant to a meeting in Lucknow on 26 August 2003, the BSP split and that they constituted the group representing a faction which had arisen as a r....
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....herefore in the background of the object sought to be achieved by the Fifty-second Amendment of the Constitution and on a true understanding of para 2 of the Tenth Schedule, with reference to the other paragraphs of the Tenth Schedule, the position that emerges is that the Speaker has to decide the question of disqualification with reference to the date on which the member voluntarily gives up his membership or defies the whip. It is really a decision ex post facto. The fact that in terms of para 6 a decision on the question has to be taken by the Speaker or the Chairman, cannot lead to a conclusion that the question has to be determined only with reference to the date of the decision of the Speaker. An interpretation of that nature would leave the disqualification to an indeterminate point of time and to the whims of the decision-making authority. The same would defeat the very object of enacting the law. Such an interpretation should be avoided to the extent possible. We are, therefore, of the view that the contention that (sic it is) only on a decision of the Speaker that the disqualification is incurred, cannot be accepted. This would mean that what the learned Chief Justice ha....
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.... Tenth Schedule, 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 in clause (1) or clause (2) of Article 191; or (b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, and his resignation is 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 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. [See Shivraj Singh Chouhan (supra) and Pratap Gouda Patil (supra) where this Court observed that MLAs will be reflected in the strength of the House until they are disqualified and will have the right to participate in the proceedings.] 92. Articles 189(2) and 100(2) (the corresponding provisions for Parliament) stipulate that the validity of any proceedings of the legislature shall not be questioned on the ground that it w....
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....LP. The petitioners have challenged the communication of the Speaker dated 3 July 2022 by which (i) the appointment of Mr. Ajay Choudhari was cancelled and Mr. Shinde was appointed as the Leader of the SSLP; and (ii) Mr. Gogawale was appointed as the Chief Whip in place of Mr. Sunil Prabhu. Before adjudicating on the validity of the impugned communications, it is necessary to answer the preliminary objection that the courts cannot inquire into communications recognizing the Whip and the Leader of a legislature party because of the bar under Article 212 of the Constitution. a. The bar under Article 212: justiciability of legislative proceedings 95. Article 212(1) stipulates that the Court shall not inquire into the validity of the proceedings of the Legislature of a State on the ground of 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 State shall not be called in question on the ground of any alleged irregularity of procedure." 96. This Court has on earlier occasions construed the scope of the restriction on judicial review of proceedings of ....
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....urt held that "an appointment which was made throwing all constitutional obligations and statutory rules to the winds would render the same illegal whereas irregularity presupposes substantial compliance with the rules." Thus, the issue of whether the action violating a procedure would render the proceedings irregular or illegal is specific to context of each case. It depends on the purpose of the prescribed procedure and the consequence of non-compliance with such procedure. This is true across diverse areas of law. 98. The House of the People and the Legislative Assemblies of States are constituted of members directly elected by the electorate. The candidate who secures the highest number of votes is returned to the Assembly. The political party which reaches the half-way mark forms the government. A coalition of political parties may form the government if no single political party reaches the half-way mark. Articles 75 and 164 provide that the Council of Ministers is collectively responsible to the House of the People and Legislative Assembly of the State respectively. The legislators who are directly elected by the people have a duty to hold the executive accountable on the....
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.... Speaker ruled that the sitting on 29 January 2004 could not be deemed to be the first session of the 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 fourteenth session of the Thirteenth Lok Sabha. This Court held that in view of the bar under Article 122, the issue of whether the sitting on 29 January 2004 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 die on 23-12-2003 and direction to resume its sittings in part two essentially relates to proceedings in Parliament and is procedural in nature. The business transacted and the validity of proceedings after the resumption of its sittings pursuant to the directions of the Speaker cannot be inquired into by the courts." The observations in Ramdas Athawale (supra) that it was purely a matter of procedure cannot be interpreted to mean that procedural infringements are not subject to judicial review. This Court observed that the procedure that was alleged to have been violated would only render the proceedings....
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....urposes of this sub-paragraph,- (a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member;" (emphasis supplied) 103. The petitioners contend that the Whip and the Leader must be appointed by the political party because Paragraph 2(1)(b) requires that the direction to vote in a particular manner in the House must be from the political party or a person authorised by it, meaning the political party. The respondents submit that the distinction between political party and legislature party is artificial and that they are intertwined concepts. For this purpose, reference was made to Paragraph 4(2) of the Tenth Schedule and Paragraph 6A of the Symbols Order. The term 'political party' is not defined in the Tenth Schedule. However, the explanation to Paragraph 2 creates a deeming fiction while referring to political parties. The explanation to Paragraph 2 provides that an elected member of a House shall be deemed to belong to the political party by which they were set up as a candidate for election. Paragraph 4 creates another deeming fiction. The provision provides that if the....
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....ss than six percent of the total valid votes polled in the State; and, in addition, the party has returned at least one member to the House of the People from that State at such general election; or (iii) At the last general election to the Legislative Assembly of the State, the party has won at least three percent of the total number of seats in the Legislative Assembly, (any fraction exceeding half being counted as one), or at least three seats in the Assembly, whichever is more; or (iv) At the last general election to the House of the People from the State, the party has returned at least one member to the House of the People for every 25 members or any fraction thereof allotted to that State;] or (v) At the last general election to the House of the People from the State, or at the last general election to the Legislative Assembly of the State, the candidates set up by the Party have secured not less 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 legislature party is inextricably intertwine....
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....eader of a legislature party must furnish the following within thirty days of forming the legislature party: a. A statement in writing containing the names of members of the legislature party with the particulars of the members as specified in Form I, and the names and designations of the members who have been authorised by it for communicating with the Speaker for the purposes of these rules; b. A copy of the rules and regulations of the political party; and 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 legislature party .- (1) The leader of each legislature party (other than a legislature party consisting of only one member) shall within thirty days from the date of commencement of these rules or, where such legislature party is formed after such date within thirty days from the date of its formation, or, in either case, within such further 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 members of ....
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....by the party forming the Government to be the Chief Whip or Whip in the House and recognized as such by the Chairman; and includes a member of the House, who, is for the time being, declared as such by the party having at-least ten percent of the total members of the House and recognized as such by the Chairman." 109. On a literal interpretation of the provisions of the Tenth Schedule, the 1986 Rules and the Act of 1956, the direction to vote or abstain from voting arises from the political party and not the legislature party for the following reasons: a. Paragraph 2(1)(b) of the Tenth Schedule provides that the direction to vote or abstain from voting must be issued by the political party or by "any person or authority authorised by it," with the word 'it' referring to the political party. The provision states that prior permission must have been received from the political party if the member wants to vote contrary to the direction issued, and the political party must condone such action within fifteen days. The provisions of the Tenth Schedule stipulate in unequivocal terms that the direction must come from the political party and not the legislature party. T....
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....es that the Leader has to inform the Speaker if the political party has condoned the prohibitory actions of the members of the legislature party clearly establishes that it is only the Leader who communicates with the Speaker for the purposes of the 1986 Rules. This is all the more evident since Rule 3(5) requires the Leader to inform the Speaker in a situation where the Leader votes or abstains from voting contrary to the direction of the political party. Under the 1986 Rules, the Whip is not the designated authority to file disqualification petitions. Rule 6 provides that a petition for disqualification can be filed by any member of the Maharashtra Legislative Assembly. The argument of the respondents that the legislature party appoints the Whip fails, so far as it is based on the provisions of the 1986 Rules discussed in this paragraph. 110. In Mayawati (supra), the appellant issued a direction to all the MLAs of the BSP directing them to vote against the motion of no confidence moved by the BJP. Twelve MLAs belonging to the BSP voted in favour of the no confidence motion. The appellant filed petitions for disqualification against these twelve MLAs for the violation of Paragr....
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....slator shifts allegiance after the electorate votes for that legislator on the belief that they represent the ideology of a certain political party. The Tenth Schedule was introduced, as the Statement of Objects and Reasons of the Constitution (Fifty Second Amendment) Bill 1985 states, to combat the evil of political defections which was "likely to undermine the very foundations of our democracy and the principles which sustain it."[ Statement of Objects and Reasons appended to the Constitution (Fifty-second Amendment) Bill, 1985 (Bill No. 22 of 1985) which was enacted as the Constitution (Fifty-second Amendment) Act, 1985] In Kihoto Hollohan (supra), SR Bommai, and Kuldip Nayar v. Union of India [(2006) 7 SCC 1] this Court recognized that political parties are central to the Indian democratic set-up, and that the Tenth Schedule seeks to curb defections from political parties. When the anti-defection law seeks to curb defections from a political party, it is only a logical corollary to recognize that the power to appoint a Whip vests with the political party. 113. To hold that it is the legislature party which appoints the Whip would be to sever the figurative umbilical cord whi....
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.... (ii) cancelling the appointment of Mr. Sunil Prabhu as the Chief Whip and appointing Mr. Gogawale in his place. The resolution inter alia stated that (i) there was enormous discontent amongst the cadre and party workers of Shiv Sena for breaking the pre-poll alliance with BJP and forming the Government with INC and NCP; and (ii) the leaders of the Shiv Sena had compromised on the principles of the Shiv Sena party to attain power. The petitioners contend that this letter was issued on 22 June 2022 and has been back dated as 21 June 2022. 117. By an order dated 21 June 2022, the Deputy Speaker (who was at the time discharging the functions of the Speaker) approved the request 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. Rahul Narwekar, the candidate of BJP was elected as the Speaker. On the same day, the Speaker took cognizance of the resolution passed by thirty-four MLAs belonging to the faction led by Mr. Shinde and appointed Mr. Shinde as the Leader and Mr. Gogawale as the Chief Whip. The Deputy Secretary of the Maharashtra Legislative Assembly issued a communication that the Speaker has recog....
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....f the political party to identify the Whip authorised by the Shiv Sena Political Party. For the reasons detailed in the preceding paragraphs, the Speaker must only recognize the Whip appointed by the political party. 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 a faction of the SSLP without undertaking an exercise to determine if it was the decision of the political party. 120. Rule 2(f) defines 'Leader' in relation to the legislature party as a member of the party chosen by it as its leader. The term 'party' is ambiguous. It is not preceded by either 'political' or 'legislature'. It may be interpreted to mean 'legislature party' because the definition clause defines a Leader in relation to 'legislature party' and then proceeds to use the phrase 'party.' Alternatively, it could also take the meaning of 'political party' because 'party' in common parlance means 'political party.' 121. Under Paragraph 8(1)(b) of the Tenth Schedule and Rule 3(5) of the 1986 Rules, the Leader of the legislature....
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....chedule as well as proceedings for the allotment of a symbol under the Symbols Order. 126. The petitioners argue that this Court ought to lay down a constitutional sequence in order to harmonise proceedings for disqualification under the Tenth Schedule, the notice of intention to move a resolution for the removal of the Speaker under Article 179(c) of the Constitution, and the allotment of an election symbol under Paragraph 15 of the Symbols Order. 127. Since we have referred the issues arising from the issuance of a notice of intention to move a resolution for the removal of the Speaker under Article 179(c) to a larger Bench, it only remains for us to consider the manner in which the remaining two proceedings ought to be harmonized. a. The purpose of the Tenth Schedule and the effect of disqualification 128. As discussed extensively in this judgement as well as in other judgements of this Court, the purpose of the Tenth Schedule is to disincentivize and penalize the constitutional sin of defection. [Kihoto Hollohan (surpa); Nabam Rebia (supra)] A violation of the anti-defection law results in a member of the House being: a. Disqualified from the House; [Paragr....
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..... [Paragraph 6(2), Symbols Order] The ECI recognizes political parties as National Parties or State Parties if they satisfy the requirements prescribed in the Symbols Order. [Paragraphs 6A, 6B, 6C, Symbols Order] 132. The ECI allots a symbol to every candidate who contests elections, in accordance with the Symbols Order. [Paragraph 4, Symbols Order] Some symbols are called "reserved symbols" because they are reserved for a recognised political party and are exclusively allotted to candidates set up by that party and the remaining symbols are called "free symbols."[Paragraph 5, Symbols Order] The political party is granted recognition under the Symbols Order based on the total number of candidates returned to the Legislative Assembly or the total percentage of votes secured by the political party. Candidates set up by recognised political parties must contest elections by using the symbol that is reserved for their party, and no other symbol.[Paragraph 8, Symbols Order] In contrast, candidates other than those who are set up by national or state political parties and who do not fall under certain special categories, [Paragraphs 10, 10A, 10B, Symbols Order] may choose and will be ....
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....n is satisfied on information in its possession that there are rival sections or groups of a recognised political party each of whom claims to be that party, the Commission may, after taking into account all the available facts and circumstances of the case and hearing such representatives of the sections or groups and other persons as desire to be heard, decide that one such rival section or group or none of such rival sections or groups is that recognised political party and the decision of the Commission shall be binding on all such rival sections or groups." 136. The natural consequence of the decision of the ECI is that the group that is recognised as constituting the political party is allotted the symbol that was reserved for that political party. Prior to 1997, the faction which was not granted the symbol of the political party (and by corollary was not recognised as the political party) was also recognised as a National Party or a State Party under the Symbols Order. [V S Rama Devi and S K Mendiratta, How India Votes (3rd edition, 2014), at 621] The ECI departed from this practice in 1997. The ECI has since held that the faction that is not recognised as the political p....
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....ke into account all the available facts and circumstances of the case and hear representatives of the rival groups and other persons who wish to be heard. However, neither Paragraph 15 nor the other provisions of the Symbols Order specify the test which is to be applied by the ECI in arriving at its decision as to who the political party is. Similarly, no test is excluded from application by the ECI. This means that the ECI is free to fashion a test which is suited to the facts and complexities of the specific case before it. 140. In Sadiq Ali (supra), this Court had occasion to consider a few of the different tests that were capable of being applied in proceedings under Paragraph 15. In that case, two rival groups, Congress O and Congress J, emerged from the INC. While adjudicating their competing claims under Paragraph 15, the ECI considered the following tests: a. A test analysing the provisions of the constitution of the party; b. A test assessing which of the two rival groups adhered to the aims and objects of the party as incorporated in its constitution; and c. A test evaluating which of the two rival groups enjoyed a majority in the legislature....
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....e circumstances of the case a relevant and germane test. On that point, we have no hesitation in holding that in the context of the facts and circumstances of the case, the test of majority and numerical strength was not only germane and relevant but a very valuable test." 143. Subsequent to the decision in Sadiq Ali (supra), the Election Commission consistently applied the test of majority in the legislative and organisational wings of the party to disputes under Paragraph 15. [V S Rama Devi and S K Mendiratta, How India Votes (3rd edition, 2014), at 619] However, neither the Symbols Order nor Sadiq Ali (supra) indicates that this is the only or even the primary test to be applied while determining disputes under Paragraph 15. The 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. d. The potential for complications in the present case 144. In the present case, in late June 2022 and in the first week of July 2022, members of each faction filed petitions for the disqualification of members of the opposing faction ....
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....s. It is precisely this complication which the petitioners seek to guard against. The petitioners urge that when proceedings under Paragraph 15 of the Symbols Order and the Tenth Schedule have arisen concurrently, this Court ought to lay down a 'constitutional sequence' for the proceedings. They submit that proceedings under the Tenth Schedule must be adjudicated before the dispute under Paragraph 15 of the Symbols Order is determined, and that a symbol can be allotted only after "the final adjudication 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 soon after being adjudicated to be the political party, the very foundation of their claim of being the political party no longer subsists. Even if they are not disqualified, the foundation of their claim (i.e., a legislative majority) is still on uncertain ground at the time of adjudication. This is not a constitutionally desirable outcome. e. Harmonising the Tenth Schedule with Paragraph 15 of the Symbols Order 148. This Court cannot accept the solution proposed by the petitioners and lay down a co....
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.... of the provisions of the party constitution, or any other appropriate test. 151. When this Court decided the petition in Sadiq Ali (supra), the Tenth Schedule did not form a part of the Constitution. There was no way for this Court to have anticipated the complexities that could arise on its inclusion while deciding which test was most appropriate. Regardless, this Court did not hold that the test of majority in the legislature was exclusively appropriate or even that it was the primary test. It instead found that the test was suited to the facts and circumstances of that case. As noticed in the preceding paragraphs, nothing in the Symbols Order mandates the use of a particular test to the exclusion of other tests. The ECI must apply a test which is best suited to the unique facts and circumstances of the case before it. The parties in the dispute before the ECI are free to propose a suitable test and the ECI may either apply one of the tests proposed or fashion a new test, as appropriate. This Court observed in Sadiq Ali (supra) that the test of legislative majority was a relevant test under Paragraph 15 proceedings in that case for two reasons: first, INC was according to the....
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.... attained by different routes, and the ECI while making such an assessment would be rendering its opinion without any objective basis. The ECI must remain a neutral body and refrain from passing a subjective judgement on the approaches preferred by the rival factions. 154. At this stage, a question may arise as to whether the decision of the ECI under the Symbols Order must be consistent with the decision of the Speaker under the Tenth Schedule. The answer is no. This is because the decision of the Speaker and the decision of the ECI are each based on different considerations and are taken for different purposes. 155. The decision of the ECI has prospective effect. A declaration that one of the rival groups is that political party takes effect prospectively from the date of the decision. In the event that members of the faction which has been awarded the symbol are disqualified from the House by the Speaker, the members of the group which continues to be in the House will have to follow the procedure prescribed in the Symbols Order and in any other relevant law(s) for the allotment of a fresh symbol to their group. 156. The disqualification proceedings before the Speaker c....
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.... Schedule witnessed innumerable defections in political parties at both the Union and State level. The turbulent political scenario ensuing from these defections gave rise to the need for an anti-defection law in the country. 160. The Tenth Schedule penalises defection by disqualifying any member of the House who is found to have indulged in the prohibited act. Paragraph 2(1)(a) stipulates that a member of a House belonging to any political party shall be disqualified for being a member of the House if they have voluntarily given up their membership of such political party. Paragraph 2(1)(b) provides that a member shall be disqualified if they vote or abstain from voting in the House contrary to any directions issued by the political party to which they belong, or by any person authorised by it in this behalf. 161. Paragraph 6 of the Tenth Schedule entrusts the Speaker of the House with the authority to adjudicate disqualification petitions. While adjudicating a disqualification petition, the Speaker must also consider any defence(s) raised by the member against whom the petition has been filed. The Tenth Schedule, as it currently stands, specifies five defences which a membe....
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....office. [Paragraph 5 of the Tenth Schedule to the Constitution] 162. Prior to 2003, a sixth defence under Paragraph 3 was available to members against whom disqualification petitions were filed. Paragraph 3 stipulated that a member of the House would not be subject to disqualification if there was a split in their original political party. It was omitted from the Tenth Schedule by the Constitution (Ninety-first Amendment) Act 2003. Prior to its omission, Paragraph 3 read as follows: "3. Disqualification on ground of defection not to apply in case of split .- Where a member of a House makes a claim that he and any other members of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original political party and such group consists of not less than one-third of the members of such legislature party,- (a) he shall not be disqualified under sub-paragraph (1) of paragraph 2 on the ground- (i) that he has voluntarily given up his membership of his original political party; or (ii) that he has voted or abstained from voting in such House contrary to any direction issued by such party or by a....
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....efence to disqualification is made out. 166. This is necessarily the implication of the deletion of Paragraph 3. To hold otherwise would be to permit the entry of the defence of 'split' in the Tenth Schedule through the back door. This is impermissible and would render the deletion of Paragraph 3 meaningless. It is trite law that what cannot be done directly cannot be permitted to be done indirectly. [Delhi Admn. v. Gurdip Singh Uban, (2000) 7 SCC 296; Taxi Owners United Transport v. State Transport Authority (Orissa), (1983) 4 SCC 34] The interpretation which we have expounded is the only one which comports with the deletion of Paragraph 3. b. The decision of the Speaker under Paragraph 2 of the Tenth Schedule 167. Regardless of the defence available to members who face disqualification proceedings, the Speaker may be called upon to determine who the "real" political party is while adjudicating disqualification petitions under Paragraph 2(1)(a) where two or more factions of the political or legislature party have arisen. The effect of the deletion of Paragraph 3 is that both factions cannot be considered to constitute the original political party. In order to dete....
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.... in his place. The signatories also expressed their discontent and dissatisfaction with the Shiv Sena for forming the Government in alliance with the INC and the NCP. Separately, on 28 June 2022, the Governor received letters from the Leader of Opposition at the time, Mr. Devendra Fadnavis, and seven MLAs who were elected as independent candidates requesting him to direct Mr. Thackeray to prove his majority on the floor of the House. On the same day, the Governor issued the communication impugned in WP(C) 470 of 2022 to Mr. Thackeray, directing him to prove his majority on the floor of the House on 30 June 2022. Mr. Thackeray resigned on 29 June 2022 after this Court declined to stay the 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 June 2022. However, the question of whether the Governor exercised the discretion vested in him by the Constitution in accordance with law is required to be addressed by this Court in view of the enormity of the responsibility entrusted with the gubernatorial office as well as the significance of the consequences which follow from the exercise of such discretion. ....
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....o send messages to the House whether with respect to a pending Bill or otherwise. a. The power of the Governor to call for a floor test 174. In S R Bommai (supra) the Janata Party formed the government in Karnataka under the leadership of S R Bommai in August 1988. Soon after, the Janata Party and Lok Dal (B) merged into a new party called Janata Dal. In April 1989, seventeen Janata Dal legislators wrote to the Governor withdrawing their support to the government. On 19 April 1989, the Governor sent a report to the President stating that the Chief Minister had lost the majority in the Assembly and recommended invocation of the President's rule under Article 356(1) of the Constitution. On 20 April 1989, the Chief Minister offered to prove majority on the floor of the House. However, on the same day the Governor sent another report to the President reiterating that the Chief Minister had lost the confidence of the majority of the House and recommended action under Article 356(1). Accordingly, on 21 April 1989, the President issued a proclamation, dismissed the State Government, and dissolved the Assembly. 175. This Court held that the Governor cannot decide whether....
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....based on objective material and reasons which are relevant and germane to the exercise of discretion, and not extraneous to it. The Court emphasised that the Governor should not use their discretionary power to destabilise or displace democratically elected governments: "71. The powers which are entrusted to constitutional functionaries are not beyond the pale of judicial review. Where the exercise of the discretion by the Governor to call a floor test is challenged before the court, it is not immune from judicial review. The court is entitled to determine whether in calling for the floor test, the Governor did so on the basis of objective material and reasons which were relevant and germane to the exercise of the power. The exercise of such a power is not intended to destabilise or displace a democratically elected Government accountable to the Legislative Assembly and collectively responsible to it. The exercise of the power to call for a trust vote must be guided by the overarching consideration that the formation of satisfaction by the Governor is not based on extraneous considerations." 177. This Court also observed that unless there are "exigent and compelling cir....
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....ice of the Council of Ministers is of an extraordinary nature. The exercise of such power has ramifications on parliamentary democracy. Hence, the ambit of the exercise of such power by the Governor must be calibrated to meet the exigencies of situations where the Governor is satisfied on the basis of objective material that there is sufficient cause to warrant the exercise of their extraordinary power. The discretion to call for a floor test is not an unfettered discretion but one that must be exercised with circumspection, in accordance with the limits placed on it by law. b. The Governor's exercise of the power to call for a floor test 182. In his letter dated 28 June 2022, the Governor relied on the five circumstances mentioned above to arrive at following conclusions: (i) a majority of the MLAs of Shiv Sena intended to exit from the MVA government; (ii) Mr. Thackeray was trying to win over the MLAs using undemocratic methods; and (iii) Mr. Thackeray had lost the trust of the House and the MVA Government was in the minority. 183. The petitioners have urged that the Governor was not justified in reaching the conclusion that he did on the basis of the resolution date....
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....result of party differences within the Shiv Sena. However, the floor test cannot be used as a medium to resolve internal party disputes or intra party disputes. Dissent and disagreement within a political party must be resolved in accordance with the remedies prescribed under the party constitution, or through any other methods that the party chooses to opt for. There is a marked difference between a party not supporting a government, and individuals within a party expressing their discontent with their party leadership and functioning. 189. The Governor is the titular head of the State Government. He is a constitutional functionary who derives his authority from the Constitution. This being the case, the Governor must be cognizant of the constitutional bounds of the power vested in him. He cannot exercise a power that is not conferred on him by the Constitution or a law made under it. Neither the Constitution nor the laws enacted by Parliament provide for a mechanism by which disputes amongst members of a particular political party can be settled. They certainly do not empower the Governor to enter the political arena and play a role (however minute) either in inter-party dispu....
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....d to continues to be provided to them, if it has been removed. This was an extraneous reason that was considered by the Governor. 192. The third communication that the Governor relied on is the letter dated 21 June 2022 addressed by Mr. Eknath Shinde to the Deputy Speaker stating that the appointment of Mr. Ajay Choudhari was illegal. The Governor may not enquire into or express an opinion on the validity of proceedings of the legislature. That is exclusively within the domain of the legislature itself or in certain circumstances (discussed in the previous segment of this judgement) within the domain of Courts. The discretionary power of the Governor under Article 163 of the Constitution is limited to situations where a constitutional provision expressly provides for it, or where the Constitution cannot be construed otherwise than to grant such discretion. [Nabam Rebia (supra)] Hence, the Governor ought not to have relied on the letter dated 21 June 2022. In any event, the contents of the letter did not 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. F....
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.... option of initiating a no-confidence motion after the adjudication of disqualification petitions is open to the MLAs. However, this Court cannot stay the proceedings of the House until the disqualification petitions are decided. To do so would amount to interfering with the proceedings of the House. The discretion of the Governor to direct the Chief Minister to face a floor test ought to be based on objective material. viii. 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 by the Governor in inviting Mr. Shinde to form the government on two grounds: first, Mr. Shinde's appointment is barred by Article 164(1B) of the Constitution; and second, the Governor has exceeded the scope of his 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 197. Article 164(1B) of the Constitution is reproduced below: " 164. Other provisions as to Ministers. ... (1B) A member of the Legislative....
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....peaker returns a verdict finding that the member of the House in question has breached Paragraph 2 of the Tenth Schedule. If the Speaker finds that Mr. Shinde is disqualified, he will no longer be eligible to hold the post of Chief Minister for the duration specified in Article 164(1B). 200. The petitioners have relied on the decision in Rajendra Singh Rana (supra) in support of their contention. As discussed in the previous segment of this judgment, the disqualification of a member of the House relates back to the date on which the proscribed act was performed for the purpose of determining whether a defence to disqualification is made out. 201. The petitioners have also relied on the decision in Shrimanth Balasaheb Patil (supra) to urge that the appointment of Mr. Shinde is barred by Article 164(1B). In this case, the State Government of Karnataka was formed by a coalition consisting of MLAs of the INC and the Janata Dal (Secular) in 2018. In early 2019, a series of disqualification petitions under the Tenth Schedule were filed against MLAs of various parties which formed the government. Some of them submitted their resignations to the Speaker either immediately before or s....
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..... The decision in Shrimanth Balasaheb Patil (supra) applied the principle that disqualification relates to the date on which the act of defection takes place to mean that acts or events subsequent to the commission of the conduct prohibited under the Tenth Schedule, do not have an exculpatory effect. In other words, subsequent acts or events do not have the effect of curing such conduct or releasing the actor from the consequences which follow. This is consistent with the decision in Rajendra Singh Rana (supra). Mr. Shinde's appointment is therefore not barred by Article 164(1B) of the Constitution. b. The Governor did not exceed the scope of his authority 204. The petitioners submit that the Governor has exceeded the scope of his authority by inviting Mr. Shinde to form the government because: a. The President of the Shiv Sena, Mr. Thackeray, was not in favour of a government formed in coalition with the BJP. However, the group led by Mr. Shinde was in favour of such an alliance. By inviting Mr. Shinde to form the government, the Governor has de facto recognized the group led by him as the "real" Shiv Sena; and b. The Governor is not empowered to recogn....