Author Details :-
Ayushi Mendhiratta
Punjab University UILS
Subhash Desai v. Principal Secretary, Governor of Maharashtra & Ors.
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 493, 469, 468, 470, 479 & 538 of 2022
DECIDED ON: 11 MAY 2023.
BACKGROUND OF THE CASE:
In a democratic country like India, the legislative assembly of a particular state is the formulation of candidates directly elected by the citizens of that respective state. The party (political) which anchors the minimum vote requirement is empowered to form the government. In case no single political party is susceptible to forming a government; a coalition or an alliance may be put into the democratic arrangement. Consequently, in Maharashtra, a coalition govt. known as Maha Vikas Aghadi (MHA) Was incarnated and incorporated the Shiv Sena, the Indian National Congress along with the Nationalist Congress party.
BRIEF FACTS OF THE CASE:
The political crisis in Maharashtra began on June 20, 2022, when some elected MLAs of the Shiv Sena Party, headed by Eknath Shinde, cross-voted in the polls for election to the legislative council. Therefore, the party’s president, i.e., the then CM of Maharashtra Uddhav B. Thackeray, called for an emergency meeting amongst the legislature party. Consequently, on 25th June after noticing the conduct of members amounting to defection as voluntarily resigning from the party, he issued 16 disqualification notices under paragraph 2(1)(a) of the tenth schedule through Narhari Sitaram Zirwal (deputy speaker).
On 26th June the faction of Shiv Sena Party led by Eknath Shinde approached the Supreme Court which resulted in the stay on disqualification notices for 12 days. Meanwhile, on 24th June a no-confidence motion was issued against the deputy speaker by the agitators. Not only this, they approached Bhagat Singh Koshiyari (governor) to conduct a floor test on 30th June.
Discontented with the decision of the governor, Thackeray filed a petition in the Supreme Court. In contrast, the court rejected the plea to put a stay on the floor test. As a result, Thackeray resigned from his position, and Eknath Shinde was appointed as the new CM on 30th June and was invited to form a new govt.
ISSUES PRESENTED: –
- Does the court have power of judicial review against the procedural infringement in the legislative activities?
- Can a speaker who is himself under the cloud of removal decide the disqualification petitions of MLAs under the tenth schedule? (NABAM RABIA JUDGEMENT)
- Scope and jurisdiction of powers of the governor.
- The Election Commission and its scope of power to ascertain the split in the party in addition to the order of the symbols.
- Can MLAs whose disqualification decision is pending, be barred from participating in the legislative activities until the final verdict of the speaker is delivered?
ARGUMENTS BY PLAINTIFF:
The counsel on behalf of the Thackeray faction argued that the judgment delivered by the court in the ‘Nabam Rebia’ case was unconstitutional as it mentioned that the issuance of notice of removal of the speaker under article 179(c) did not require the house to be in session. He argued that prohibiting or refraining the speaker from discharging its verdict under the tenth schedule would capsize the democratic setup. They put greater emphasis on the second provision of article 179(c) which states that the speaker continues to execute its functions until a new assembly has been constituted.
Furthermore, they argued that the verdict of the speaker on the disqualification petition is final, although its decision is subjected to judicial review only on the grounds of disqualification per se which means the judiciary can only interfere once the speaker pronounces its adjudgment.
In addition to this, according to paragraph 2(1)(a) and (b) of the tenth schedule the person is declared to be disqualified if he or she voluntarily resigns their membership and abstains from voting as per the party whip. They also challenged the interim order of ECI which declared that the Shinde faction was the real Shiv Sena ignoring the repercussions of the disqualification notice under the tenth schedule along with being oblivious to the organization party test.
ARGUMENTS BY DEFENDANT:
The counsel on behalf of the respondent argued that the judgment delivered by the court in the ‘Nabam Rebia’ case is purely constitutional. The day notice is issued for the removal of the speaker, he is discharged of his functions and duties to be performed as per the tenth schedule of the constitution.
Moreover, Article 179(c) of the Indian constitution articulates that the composition of the house must not be altered for the voting of the removal of the speaker.
In addition, they argued that they could not be declared as disqualified since the final verdict of the speaker was not declared. Not only this but they cannot be withdrawn of their right to vote and poll until they are declared disqualified under Article 191 of the Indian constitution.
Also, the election commission of India declared the Shinde faction as the real Shiv Sena on 17th February 2023.
RELEVANT LEGAL PROVISIONS:
1) Article 179 (c) of the Indian constitution.
The speaker or the deputy speaker can be removed from their office by the resolution which is passed by the majority of all the then members of the respective assembly.
2) Paragraph 2(1)(a) and (b) of the tenth schedule.
- If any member of the assembly voluntarily gives up his membership he would be declared as disqualified from that respective party.
- The person will be held disqualified under the tenth schedule if he votes or abstains from voting as per the party whip.
3) Article 163 of the Indian constitution
It states that the governor must act on the aid and advice of the council of ministers headed by the CM.
DECISION OF THE COURT:
Acknowledging the first issue, the court believed our constitution embarks that India is a democratic country where the government is of the people, for the people, by the people. Since the members of our legislative assembly are recruited by a direct electorate system, it is excruciating to uphold the interest of the general public. Our country treads on the heels of the principle of check and balance of separation of power. It is of utmost significance that our legislatures hold the executive accountable. To safeguard the constitutional provisions, the procedural requirements are prescribed in the constitution. Thus article 212 of the Indian constitution cannot be interpreted as procedural infringements that are beyond the scope of judicial review.
Further, the court was of the opinion that the speaker should conclude or determine the disqualification petitions directed under the tenth schedule solely on the political whip and the leader of that political party. To clarify further it presented its discontentment that the words ‘legislature and political party’ are not intertwined. Allowing a legislature to take votes on the name of a political party and its campaigning appertaining to its ideals and philosophy and then resigning from it would vandalize the constitutional setup.
Besides this, the Election Commission of India is a constitutional body that is empowered to have control over the electoral process. Since there is no fixed time period in which the speaker has to decide on the disqualification petition, the function and duty of ECI cannot be halted for the order under the tenth schedule for the indefinite period. Also, ECI must not restrict itself solely to the majority test but it should look at other tests inclusive of the party’s organizational test as mentioned in ‘Sadiq Ali’ case.
The resolutions which were passed by the rebel MLA were merely on the discontentment with the ideas of their political party but it nowhere mentioned that they wanted to withdraw their support from that party. The Governor should opt for the floor test only being satisfied with the objective material rather than being subjective.
The court cannot restore the status quo ante as the Then CM Mr. Thackeray resigned from his political post instead of facing the Floor test. Lastly, the judgment bestowed that the MLAs cannot be restrained from participating in the legislative procedure until the verdict of the speaker is channelized on the disqualification petition under the tenth schedule.
SOME IMPORTANT CASE LAWS
1) Rajendra Singh Rana v. Swami Prasad Maurya (2007)
In this case, the court gave the verdict that once the disqualification notices are issued under the tenth schedule, membership of the person in the assembly is ceased. It also means that the disqualification notice will ultimately alter the composition of the house.
2) Kihoto Hollohan v. Zachillhu and Others
In this case, the court declared that the decision of the speaker in case of a disqualification petition is final and can be subjected to judicial review only on the grounds: of disqualification per se or if the disqualification is arbitrary or malafide.
3) Keisham Meghachandra Singh v. The Hon’ble Speaker Manipur Legislative Assembly & Ors (2020)
The reasonable time period for the speaker to decide on the disqualification petition is three months.
4) Shamsher Singh & Anr v. State of Punjab (1974)
The governor must act on the aid and advice of the council of ministers headed by the CM. He can further exercise his discretionary power as per Article 163 of the Indian constitution.
CRITICAL ANALYSIS:
The author of this article believes that the speaker should be barred from deciding the petition on Disqualification of members of the legislative assembly under the tenth schedule whilst the intention of the members to move a resolution of removal of the speaker as per article 179 (c) of the Indian constitution. Thus, the author supports the judgement of the court in Nabam Rebia’s case. The disqualification petition should not be subjected to judicial review unless the final verdict of the speaker is determined. The voluntarily giving up on the party’s membership can be inflicted by the conduct of the member. Thus, voting against the party’s whip will amount to disqualification under paragraph 2(1)(b) of the tenth schedule. The changing of the party constitution in 2018 can be held as unconstitutional as it allowed the CM to appoint an office bearer to nominate the electorate to elect himself as the head. In contrast, the governor should not opt for a floor test when the house is not in the session. Moreover, the governor should abide by the constitution and practice his discretionary powers only as per Article 163 of the Indian constitution. The governor cannot pass orders unless the speaker decides on the disqualification petition. The governor needs to be cautious while performing his duties and functions.
CONCLUSION
To deduce, in this case, the five-judge constitution bench referred the decision made in Nabam Rebia, & Bamang Felix versus Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) to the seven-judge bench to answer serious question of law. Consequently, the judgment of the Supreme Court will be considered a landmark judgment. As a result, it will have far-reaching ramifications on the political situation of India. As per the merits of the court, the apex court could have restored the status quo ante of the then Chief Minister Uddhav B. Thackeray if he had faced the floor test in preference to the resignation. Moreover, to determine the split in the party the ECI (ELECTION COMMISSION OF INDIA) should not resort to only one test. Before delivering the order, it should incorporate in its procedure the party organizational test and others as mentioned in Sadiq Ali’s case.
REFERENCES
Maharashtra political crisis judgment: A detailed analysis – The Leaflet
Accessed on 20th august 2024.
-Sibal K and others, “IN THE SUPREME COURT OF INDIA” (2023)
Constitution of India, “Article 163: Council of Ministers to Aid and Advise Governor – Constitution of India” (Constitution of India, January 5, 2023)
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