Holding

The Governor’s call for a floor test was unjustified due to lack of objective material, but his invitation to Shinde to form the government was proper; the Speaker must recognise Whip and Leader appointed by the political party, the split defence is no longer available, and the Nabam Rebia rule on Speaker disqualification petitions requires referral to a larger bench, while courts should not ordinarily decide Tenth Schedule disqualification petitions at first instance.

Summary

After the 2019 Maharashtra elections a coalition government (MVA) led by Uddhav Thackeray collapsed in mid‑2022 when the Shiv Sena split into two factions headed by Thackeray and Eknath Shinde. The Governor, relying on letters from opposition leaders and a resolution of 34 Shiv Sena MLAs, directed Thackeray to prove his majority on the floor of the House; Thackeray resigned and the Governor invited Shinde to form the government. The petitioners challenged the Governor’s floor‑test order, the Speaker’s recognition of a new Whip and Leader, the applicability of the Nabam Rebia rule on disqualification petitions, and the effect of the deletion of the split defence in the Tenth Schedule. The Court held that the Governor had no objective material to justify a floor test, but was justified in inviting Shinde to form the government; the Speaker must recognise Whip and Leader appointed by the political party, not the legislature party; the split defence no longer exists; and the Nabam Rebia decision should be referred to a larger bench while courts should not ordinarily decide disqualification petitions at first instance. Consequently, the batch of writ petitions was disposed of.

Issues considered

The effect of a notice for removal of the Speaker on the Speaker’s power to adjudicate disqualification petitions under the Tenth Schedule (Nabam Rebia question).
Whether courts may entertain disqualification petitions under the Tenth Schedule at the first instance.
The validity of the Governor’s direction to the Chief Minister to prove majority on the floor of the House.
The legality of the Governor’s invitation to Eknath Shinde to form the government.
The proper authority for appointing the Whip and the Leader of a legislature party – political party versus legislature party.
The impact of the deletion of Paragraph 3 of the Tenth Schedule on the defence of ‘split’.
The status of House proceedings, including election of the Speaker and confidence motions, while disqualification petitions are pending.
The relationship between the Election Commission’s symbol‑allocation proceedings and the Tenth Schedule disqualification proceedings.

Legislation cited

Constitution (Fifty‑second Amendment) Act, 1985s. Insertion of Tenth Schedule
Constitution (Ninety-first Amendment) Act, 2003s. Deletion of Paragraph 3 of the Tenth Schedule
Constitution of Indias. Art.153, s. Art.163, s. Art.164(1B), s. Art.174, s. Art.175, s. Art.179(c), s. Art.181(2), s. Art.189(2), s. Art.190(3), s. Art.191(2)
Election Symbols (Reservation and Allotment) Order, 1968s. Paragraph 15, s. Paragraph 6(1)
Maharashtra Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986s. Rule 11, s. Rule 2(f), s. Rule 3(1), s. Rule 5, s. Rule 6, s. Rule 7, s. Rule 8, s. Rule 95
Maharashtra Legislative Members (Removal of Disqualification) Act, 1956s. Section 23
Representation of the People Act, 1951s. Section 29A

Subjects

Governor's discretionfloor testanti‑defection lawTenth Scheduledisqualification petitionsSpeaker of the Assemblypolitical party vs legislature partyElection Commission of Indiasymbol allocationNabam Rebiasplit defenceMaharashtra political crisisconstitutional lawArticle 179Article 191Article 164(1B)

Judgment

[2023] 8 S.C.R. 857 857

SUBHASH DESAI A
v.
PRINCIPAL SECRETARY, GOVERNOR OF MAHARASHTRA &
ORS.
(Writ Petition (C) No. 493 of 2022) B
MAY 11, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI, M. R. SHAH,
KRISHNA MURARI, HIMA KOHLI AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
C
Constitution of India: Art.191(2) – Maharashtra Legislative
Assembly Rules – r.95 – Coalition Government – Split in Political
Party – Losing Confidence of the House – Power of the Governor
to call for Floor Test – After the State elections in 2019, a coalition
government of Maha Vikas Agadi (MVA) [a post-poll alliance of
Shiv Sena, Nationalist Congress Party (NCP), Indian National D
Congress (INC) and some independent MLAs] was formed in
Maharashtra, with Mr. Thackeray of Shiv Sena as the Chief Minister
– However, certain events transpired in mid-2022 which led to split
in Shiv Sena into two factions, one led by Mr. Thackeray and the
other led by Mr. Shinde – 34 Shiv Sena MLAs (of Shinde Group)
E
issued notice to Deputy Speaker stating that he no longer enjoyed
their support and calling upon him to move a motion for his own
removal – In the meanwhile, notices were issued by the Deputy
Speaker on petition filed by the Chief Whip of petitioners (Thackeray
Group) under Tenth Schedule to the Constitution for disqualification
of MLAs of Shinde Group – Governor, pursuant to letter addressed F
by the Opposition Party, called upon the Thackeray Group to prove
majority on the floor of the House – Thackeray resigned on the
very next day and thereafter a new Govt. was formed by a coalition
consisting of BJP MLAs and rebel MLAs of Shiv Sena, with Mr.
Shinde as the Chief Minister –Discretion and power of governor to
G
invite a person to form the Government – Extent of – Held: 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 – The Governor had no objective
material on the basis of which he could doubt the confidence of the
H
857
858 SUPREME COURT REPORTS [2023] 8 S.C.R.

A incumbent government – The resolution on which the Governor
relied did not contain any indication that the MLAs wished to exit
from the MVA government – Communication expressing discontent
on the part of some MLAs is not sufficient for the Governor to call
for a floor test – The Governor ought to apply his mind to the
communication or other material before him to assess whether the
B
Government seemed to have lost the confidence of the House – The
34 Shiv Sena MLAs did not express their desire to withdraw support
from the MVA Government in the resolution – The floor test cannot
be used as a medium to resolve internal party disputes or intra party
disputes – In the present case, the Governor did not have any
C objective material before him to indicate that the incumbent
government had lost the confidence of the House and that he should
call for a floor test – Hence, exercise of discretion by the Governor
in this case was not in accordance with law – The 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
D
objective material before him, to reach the 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 Governor
was justified in inviting Mr. Shinde to form the government.
E Constitution of India – Art.153 – Position of Governor – In
Internal Disputes of a Political Party – Split in Political Party –
Held: The Governor is the titular head of the State Government –
He is a constitutional functionary who derives his authority from
the Constitution and he cannot exercise a power that is not conferred
F 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 disputes or in intra-party disputes.
G
Constitution of India: Tenth Schedule and Arts.32 & 226 –
Power and Jurisdiction of Court – To adjudicate upon
Disqualifications of Legislative Members – Held: Disqualification
of a person for being a member of the House has drastic
consequences for the member concerned and by extension, for the
H citizens of that constituency – Supreme Court should normally refrain
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 859
MAHARASHTRA

from deciding disqualification petitions at the first instance, having A
due regard to constitutional intendment – The question of
disqualification ought to be adjudicated by the constitutional
authority concerned, namely the Speaker of the Legislative Assembly,
by following the procedure prescribed – The Speaker must decide
disqualification petitions within a reasonable period.
B
Constitution of India: Art.181 – Reference to Larger Bench –
Whether a notice for removal of a Speaker restricts them from
continuing with disqualification proceedings under Tenth Schedule
as held by this Court in Nabam Rebia – Held: Although the decision
in Nabam Rebia is not applicable to the factual scenario, however,
Nabam Rebia is in conflict with the judgement in Kihoto Hollohan – It C
appears that the majority in Nabam Rebia did not consider the effect
and import of Article 181 of Constitution of India – Hence, the
decision in Nabam Rebia merits reference to a larger Bench because
a substantial question of law remains to be settled.
Constitution of India: Tenth Schedule – Maharashtra D
Legislative Members (Removal of Disqualification) Act, 1956 – s.23
– Maharashtra Legislative Assembly (Disqualification on Ground
of Defection) Rules 1986 – Rule 3(1)(a) & 6 – Appointment of Whip
– Difference between Political Party and Legislature Party – Held:
The political party and not the legislature party appoints the Whip E
and the Leader – The Tenth Schedule would become unworkable if
the term ‘political party’ is read as the ‘legislature party’ – A clear
demarcation is made between political party and legislature party
for the purpose of a merger under Paragraph 4 – To read the term
‘political party’ as ‘legislature party’ would be contrary to the plain
language of the Tenth Schedule – Direction to vote in a particular F
manner or to abstain from voting is issued by the political party
and not the legislature party – The Speaker must recognize the Whip
and the Leader who are duly authorised by the political party after
conducting an enquiry in this regard.
Constitution of India – Arts. 189(2) and 190(3) – Decision of G
Speaker – Disqualification of Member – Validity of Proceedings of
the Legislature – Held: An MLA has the right to participate in
proceedings of the House regardless of the pendency of any petitions
for their disqualification – Validity of proceedings of the House in
the interregnum is not “subject to” outcome of the disqualification
H
860 SUPREME COURT REPORTS [2023] 8 S.C.R.

A petitions – Decision of the Speaker does not relate back to the date
when the MLA indulged in prohibitory conduct – The decision of
the Speaker and the consequences of disqualification are
prospective – If a member incurs disqualification under the Tenth
Schedule, it does not automatically result in their expulsion from
the political party to which they belong.
B
Constitution of India – Tenth Schedule – Election Symbols
(Reservation and Allotment) Order, 1968 – Para 15 – Held: The
Speaker and the ECI are empowered to concurrently adjudicate on
the petitions before them under the Tenth Schedule and under
Paragraph 15 of the Symbols Order respectively.
C
Election Symbols (Reservation and Allotment) Order, 1968 –
Para 15 – Held: While adjudicating petitions under Paragraph 15
of the Symbols Order, the ECI may apply a test that is best suited to
the facts and circumstances of the case before it.
Constitution of India – Tenth Schedule – Para 2(1) and Para
D
3 –Deletion of Paragraph 3 of the Tenth Schedule – Effect of –
Held: Is that the defence of ‘split’ is no longer available to members
facing disqualification proceedings – The Speaker would prima facie
determine who the political party is for the purpose of adjudicating
disqualification petitions under Paragraph 2(1) of the Tenth
E Schedule, where two or more factions claim to be that political party
– When there are two Whips appointed by two or more factions of
the political party, the Speaker decides which of the two Whips
represents the political party
Constitution of India – Tenth Schedule – Para 2 & 3 – Election
F Symbols (Reservation and Allotment) Order, 1968 – Para 15 –
Determination of, by Election Commission of India – Which group
constitutes the political party – Allotment of Symbol – Held: The
test of majority in the legislative and organisational wings of the
party is not the only or primary test – The ECI is free to fashion a
test suited to the facts and complexities of the specific case before it
G – In some cases, it is futile to assess which group enjoys a majority
in the legislature – Other tests include an evaluation of the majority
in the organisational wings of the political party, an analysis of the
provisions of the party constitution, or any other appropriate test –
ECI to refrain from passing a subjective judgment on the approaches
H preferred by rival factions by applying the test of whether rival
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 861
MAHARASHTRA

groups are adhering to the aims and objects of the party as A
incorporated in its constitution – Decision of ECI need not be
consistent with the decision of the Speaker – Decision of the ECI
has prospective effect – Disqualification proceedings before the
Speaker cannot be stayed in anticipation of the decision of the
ECI.
B
Constitution of India – Art.164(1B) – Appointment of Chief
Minister – Pending disqualification petitions – Held: Disqualification
is triggered only if disqualification incurred under the Tenth
Schedule – Mere institution of a disqualification petition does not
trigger some or all of the consequences which flow from the
disqualification itself. C
Disposing of the Writ Petitions, the Court
HELD: 1.1 The decision in Nabam Rebia merits reference
to a larger Bench because a substantial question of law remains
to be settled. To give quietus to the issue, the following question
D
(and any allied issues which may arise) are referred to a larger
Bench: whether the issuance of a notice of intention to move a
resolution for the removal of the Speaker restrains them from
adjudicating disqualification petitions under the Tenth Schedule
of the Constitution. [Para 70 & 71][907-F; 908-F-G]
1.2 This Court should normally refrain from deciding E
disqualification petitions at the first instance, having due regard
to constitutional intendment. The question of disqualification
ought to be adjudicated by the constitutional authority concerned,
namely the Speaker of the Legislative Assembly, by following
the procedure prescribed. Disqualification of a person for being F
a member of the House has drastic consequences for the member
concerned and by extension, for the citizens of that constituency.
Therefore, any question of disqualification ought to be decided
by following the procedure established by law. Absent exceptional
circumstances, the Speaker is the appropriate authority to
adjudicate petitions for disqualification under the Tenth Schedule. G
The Speaker is expected to act fairly, independently, and
impartially while adjudicating the disqualification petitions under
the Tenth Schedule. Ultimately, the decision of the Speaker on
the question of disqualification is subject to judicial review.
Therefore, the Speaker of the Maharashtra Legislative Assembly H
862 SUPREME COURT REPORTS [2023] 8 S.C.R.

A is the appropriate constitutional authority to decide the question
of disqualification under the Tenth Schedule. [Para 80 & 85][912-
G, H; 916-A-B]
1.3 The plain meaning of the provisions of the Tenth
Schedule, 1986 Rules, and Act of 1956 indicate that the Whip
B and the Leader must be appointed by the political party. To hold
that it is the legislature party which appoints the Whip would be
to sever the figurative umbilical cord which connects a member
of the House to the political party. It would mean that legislators
could rely on the political party for the purpose of setting them
up for election, that their campaign would be based on the
C strengths (and weaknesses) of the political party and its promises
and policies, that they could appeal to the voters on the basis of
their affiliation with the party, but that they can later disconnect
themselves entirely from that very party and be able to function
as a group of MLAs which no longer owes even a hint of allegiance
D to the political party. This is not the system of governance that is
envisaged by the Constitution. In fact, the Tenth Schedule guards
against precisely this outcome. That a Whip be appointed by the
political party is crucial for the sustenance of the Tenth Schedule.
The entire structure of the Tenth Schedule which is built on
political parties would crumble if this requirement is not complied
E with. It would render the provisions of the Tenth Schedule otiose
and have wider ramifications for the democratic fabric of this
country. Thus, the Courts cannot be excluded by Article 212 from
inquiring into the validity of the action of the Speaker recognizing
the Whip. [Para 111, 113 & 114][932-H; 933-D-G; 934-A]
F 1.4 The decision of the ECI under Symbol Order 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
G
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. The disqualification proceedings before
the Speaker cannot be stayed in anticipation of the decision of
the ECI. In cases where a petition under Paragraph 15 of the
H Symbols Order is filed after the (alleged) commission of
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 863
MAHARASHTRA

prohibitory conduct, the decision of the ECI cannot be relied A
upon by the Speaker for adjudicating disqualification proceedings.
If the disqualification petitions are adjudicated based on the
decision of the ECI in such cases, the decision of the ECI would
have retrospective effect. This would be contrary to law. [Para
155 & 156][948-B-E]
B
1.5 The Governor had no objective material on the basis of
which he could doubt the confidence of the incumbent
government. The resolution on which the Governor relied did
not contain any indication that the MLAs wished to exit from the
MVA government. The communication expressing discontent on
the part of some MLAs is not sufficient for the Governor to call C
for a floor test. The Governor ought to apply his mind to the
communication (or any other material) before him to assess
whether the Government seemed to have lost the confidence of
the House. The term ‘opinion’ is used to mean satisfaction based
on objective criteria as to whether he possessed relevant material, D
and not to mean the subjective satisfaction of the Governor. Once
a government is democratically elected in accordance with law,
there is a presumption that it enjoys the confidence of the House.
There must exist some objective material to dislodge this
presumption. The Governor is the titular head of the State
Government. He is a constitutional functionary who derives his E
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 F
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 disputes or in intra-party disputes.
It follows from this that the Governor cannot act upon an inference
that he has drawn that a section of the Shiv Sena wished to G
withdraw their support to the Government on the floor of the
House. [Para 186 & 189][959-C-E; 960-A-C]
2. In view of the discussion above, it is concluded as follows:
(a) The correctness of the decision in Nabam Rebia is referred
H
864 SUPREME COURT REPORTS [2023] 8 S.C.R.

A to a larger Bench of seven judges; (b) This Court cannot ordinarily
adjudicate petitions for disqualification under the Tenth Schedule
in the first instance. There are no extraordinary circumstances
in the instant case that warrant the exercise of jurisdiction by
this Court to adjudicate disqualification petitions. The Speaker
must decide disqualification petitions within a reasonable period;
B
(c) An MLA has the right to participate in the proceedings of the
House regardless of the pendency of any petitions for their
disqualification. The validity of the proceedings of the House in
the interregnum is not “subject to” the outcome of the
disqualification petitions; (d) The political party and not the
C legislature party appoints the Whip and the Leader of the party
in the House. Further, the direction to vote in a particular manner
or to abstain from voting is issued by the political party and not
the legislature party. The decision of the Speaker as
communicated by the Deputy Secretary to the Maharashtra
Legislative Assembly dated 3 July 2022 is contrary to law. The
D
Speaker shall recognize the Whip and the Leader who are duly
authorised by the Shiv Sena political party with reference to the
provisions of the party constitution, after conducting an enquiry
in this regard and in keeping with the principles discussed in this
judgement; (e) The Speaker and the ECI are empowered to
E concurrently adjudicate on the petitions before them under the
Tenth Schedule and under Paragraph 15 of the Symbols Order
respectively; (f) While adjudicating petitions under Paragraph 15
of the Symbols Order, the ECI may apply a test that is best suited
to the facts and circumstances of the case before it; (g) The effect
of the deletion of Paragraph 3 of the Tenth Schedule is that the
F
defence of ‘split’ is no longer available to members facing
disqualification proceedings. The Speaker would prima facie
determine who the political party is for the purpose of adjudicating
disqualification petitions under Paragraph 2(1) of the Tenth
Schedule, where two or more factions claim to be that political
G party; (h) The 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 the 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
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 865
MAHARASHTRA

tendered his resignation; and (i) The Governor was justified in A
inviting Mr. Shinde to form the government. [Para 206][966-F-
H; 967-A-H; 968-A-B]
Nabam Rebia & Bamang Felix v. Deputy Speaker,
Arunachal Pradesh Legislative Assembly (2016) 8 SCC
1 : [2016] 6 SCR 1 – referred to larger bench. B
Rajendra Singh Rana v. Swami Prasad Maurya (2007)
4 SCC 270 : [2007] 2 SCR 591 and Speaker, Haryana
Vidhan Sabha v. Kuldeep Bishnoi, (2015) 12 SCC 381
: [2012] 10 SCR 672 – held inapplicable.
C
Kihoto Hollohan v. Zachillhu (1992) Supp (2) SCC 651
: [1992] 1 SCR 686 and Shrimanth Balasaheb Patil v.
Speaker, Karnataka Legislative Assembly (2020) 2 SCC
595 : [2019] 16 SCR 886 – relied on.
Ramdas Athawale v. Union of India,(2010) 4 SCC 1: D
[2010] 3 SCR 1059 – explained.
Special Reference No. 1 of 1964 (Powers, Privileges
and Immunities of State Legislatures) AIR 1965 SC 745
: [1965] 1 SCR 413; SR Bommai v. Union of India (1994)
3 SCC 1 : [1994] 2 SCR 644; Mayawati v. Markandeya E
Chand (1998) 7 SCC 517 : [1998] 2 Suppl. SCR 204;
Sadiq Ali v. Election Commission of India (1972) 4 SCC
664 : [1972] 2 SCR 318; Raja Ram Pal v. Hon’ble
Speaker, Lok Sabha (2006) 2 SCC 1 : [2006]
1 SCR 562; Rameshwar Prasad v. Union of India
(2007) 3 SCC 184 : [2007] 1 SCR 317; Indore F
Development Authority v. Manohar Lal (2020) 8 SCC
129 : [2020] 3 SCR 1 Pratap Gouda Patil v. State of
Karnataka (2019) 7 SCC 463; Shivraj Singh Chouhan
v. Union of India (2020) 17 SCC 1 : [2020] 9 SCR 787;
Kshetrimayum Biren Singh v. Hon’ble Speaker, Manipur G
Legislative Assembly (2022) 2 SCC 759; Keisham
Meghachandra Singh v. Hon’ble Speaker Manipur
Legislative Assembly (2020) SCC OnLine SC 55;
Justice KS Puttaswamy v. Union of India (Aadhar 5J)
(2019) 1 SCC 1 : [2018] 8 SCR 1; Rojer Mathew v.
South Indian Bank Ltd. (2020) 6 SCC 1 : [2019] H
866 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 16 SCR 1; State of UP v. Desh Raj, (2007) 1 SCC 257
: [2006] 9 Suppl. SCR 352; Kuldip Nayar v. Union of
India (2006) 7 SCC 1 : [2006] 5 Suppl. SCR 1; Delhi
Admn. v. Gurdip Singh Uban, (2000) 7 SCC 296 : [2000]
2 Suppl. SCR 496 and Taxi Owners United Transport v.
State Transport Authority (Orissa), (1983) 4 SCC 34 –
B referred to.
Case Law Reference
[2016] 6 SCR 1 referred to larger bench Para 32(a)
[1992] 1 SCR 686 relied on Para 35(a)
C [2007] 2 SCR 591 held inapplicable Para 35(e)
[1998] 2 Suppl. SCR 204 referred to Para 40(b)(i)
[2006] 1 SCR 562 referred to Para 40(b)(vi)
[2007] 1 SCR 317 referred to Para 40(f)(iii)
D [2020] 3 SCR 1 referred to Para 41(a)(i)
[1994] 2 SCR 644 referred to Para 41(e)
[1972] 2 SCR 318 referred to Para 42(d)
(2019) 7 SCC 463 referred to Para 43(c)
[2012]10 SCR 672 held inapplicable Para 43(c)
E
[2020] 9 SCR 787 referred to Para 44(b)
(2022) 2 SCC 759 referred to Para 45(b)
[2019] 16 SCR 886 relied on Para 83
[1965] 1 SCR 413 referred to Para 96
F
[2018] 8 SCR 1 referred to Para 96
[2019] 16 SCR 1 referred to Para 96
[2006] 9 Suppl. SCR 352 referred to Para 97
[2010] 3 SCR 1059 explained Para 101
G [2006] 5 Suppl. SCR 1 referred to Para 112
(1983) 4 SCC 34 referred to Para 166
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No.493
of 2022.
H (Under Article 32 of The Constitution of India)
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 867
MAHARASHTRA

With A
Writ Petition (C) Nos.469, 468, 470, 479 And 538 of 2022.
Tushar Mehta, SG, Kapil Sibal, Dr. Abhishek Manu Singhavi,
Devadatt Kamat, Neeraj Kishan Kaul, Maninder Singh, Siddharth
Bhatnagar, Harish Salve, Mahesh Jethmalani, Ms. Malvika Trivedi, Sr.
Advs., Amit Anand Tiwari, Rohit Sharma, Rajesh Inamdar, Javedur B
Rahman, Nizam Pasha, Anish R. Shah, Harsh Pandey, Revanta Solanki,
Amit Bhandari, Sunny Jain, Nishant Patil, Ms. Devyani Gupta, Ms.
Tanvi Anand, Ms. Aprajita Jamwal, Dharmendra Mishra, Siddharth
Kaushik, Nikhil Purohit, Ashok Kumar, Siddharth Seem, L. Nidhiram
Sharma, Aman Sharma, Ashima Chauhan Singh, Mudassir, Abhikalp C
Pratap Singh, Abhay Anturkar, Prabhas Bajaj, Dhruv Sharma, Ms. Ira
Mahajan, Raghav Agrawal, Toshiv Goyal, Ms. Manmeet Kaur Sareen,
Navneet R, Ms. Shreya Saxena, Ms. Yamini Singh, Ms. Pritha Suri,
Rangsaran Mohan, Ramchandran Madan, Ms. Vijetha Ravi, Ajay
Sabharwal, Chirag Shah, Utsav Trivedi, Ravi Sharma, Himanshu
Sachdeva, Ms. Manini Roy, Ms. Shivani Bhushan, Nihar Thackeray, D
Ms. Ira Mahajan, Dhruv Sharma, Raghav Agarwal, Ms. Mugdha Pande,
Ajay Awasthi, Prabhash Bajaj, Piyush Tiwari, Ms. Shrishti Kumar, Kumar
Sumit, Ms. Chaitali Jugran, Ms. Kanjani Sharma, Ms. Pracheta Kar,
Aditya Sidhra, Nadeem Afroz, Ms. Sujal Gupta, Wedo Khalo, Anjani
Kumar Rai, Biswaksen Panda, M/s. Tas Law, Kanu Agrawal, Madhav E
Sinhal, Arvind Kumar Sharma, Ms. Ajay Sabharwal, Pai Amit, Ms.
Pankhuri Bhardwaj, Ms. Ranu Purohit, Ms. Bhavana Duhoon,
Abhiyudaya Vats, Ms. Astha Prasad, Ms. Rukmini Bobde, Ms. Trishala
Trivedi, Ankit Ambasta, Chirag Gupta, Ajit Pravin Wagh, Aaditya
Aniruddha Pande, Bharat Bagla, Sourav Singh, Ankit Yadav, Ms. Prakriti
Rastogi, Asim Sarode, Ms. Shriya Awale, Ms. Smita Singalkar, Ashok F
Kumar Gupta Ii, Pradeep Kumar Gupta, Kailash Prashad Pandey,
Mahendra Kawchale, Vijay Pal, Pramod Kumar Singh, Kundal Lal,
Anil Kumar, Umang Tripathi, Deepankar, Om Prakash, Ms. Rekha
Agarwal, Karunesh Kumar Shukla, Amit Garg, Sadashiv, Dr. AP Singh,
VP Singh, Ms. Richa Singh, Ms. Geeta Chauhan, Sharwan Kumar Goyal, G
Dr. Gunratan Sadavarte, Pankaj Kumar Singh, Pawan Kumar Shukla,
S. C. Tripathi, Mukesh Verma, Kamal Kumar Pandey, Gaurav Belsare,
Raj Singh Rana, T. R. B. Sivakumar, Shreyas Gacche, Rajsaheb Patil,
Ms. Supriya Wankhede, Advs. for the appearing parties.

H
868 SUPREME COURT REPORTS [2023] 8 S.C.R.

A The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, CJI
Table of Contents*
A. Factual Background .................................................. 4
B i. A change in the government of the State of
Maharashtra ..................................................... 4
ii. The election of the Speaker ........................ 12
iii. The proceedings before the Election
Commission of India ..................................... 15
C
B. Overview of the reliefs sought in the present
proceedings ............................................................... 16
C. The reference............................................................ 20

D D. Submissions ............................................................... 22
i. Submissions on whether Nabam Rebia’s case
ought to be referred to a larger Bench ..... 22
ii. Submissions on the merits of the case ...... 28
E. Analysis ..................................................................... 48
E
i. Reference of Nabam Rebia’s case to a larger
Bench .............................................................. 48
ii. The power of this Court to decide disqualification
petitions at the first instance ...................... 62
F iii. Validity of the proceedings of the House
between the prohibitory conduct and the
decision in the disqualification petitions ... 69
iv. The power to appoint the Whip and the
Leader of the Legislature Party ................. 75
G
a. The bar under Article 212: justiciability of legislative
proceedings ...................................................... 76
b. The power to appoint the Whip and the Leader of
the legislature party .......................................... 80
H *Ed. Note : Pagination in the Table is as per the original judgement.
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 869
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

I. ‘Political party’ and ‘legislature party’ are A
distinguishable concepts. .................................. 80
II. Literal and purposive interpretation of the provisions
of the Tenth Schedule, the 1986 Rules, and the Act
of 1956 ............................................................. 85
v. Deciding who the “real” Shiv Sena is ........ 98 B

a. The purpose of the Tenth Schedule and the effect of
disqualification .................................................. 98
b. The purpose of the Symbols Order and the effect of
the decision under Paragraph 15 .................... 100 C
c. The test(s) applicable to disputes under Paragraph
15 of the Symbols Order ................................ 104
d. The potential for complications in the present
case ................................................................ 107
D
e. Harmonising the Tenth Schedule with Paragraph 15
of the Symbols Order ..................................... 109
vi. The impact of the deletion of Paragraph 3
of the Tenth Schedule ................................ 114
E
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 F
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 G
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 H
870 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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 coalition consisting of the Shiv Sena, the
Nationalist Congress Party,1 the Indian National Congress,2 and certain
independent Members of the Legislative Assembly 3formed the
C government in the State of Maharashtra with Mr. Uddhav Thackeray of
the Shiv Sena as the Chief Minister. Certain events transpired in mid-
2022 which led to the formation of a new government by a coalition
consisting of a faction of the Shiv Sena (which claimed to the “real”
Shiv Sena), the Bharatiya Janata Party,4 and certain independent MLAs.
D Mr. Eknath Shinde of the Shiv Sena helmed the second government as
its Chief Minister. The change in the composition of the government in
the State of Maharashtra was precipitated by the emergence of two
factions within the Shiv Sena. Various issues arising from these events
fall to be determined by this Court in these proceedings. A detailed
narration of the factual background follows.
E
A. Factual Background
i. A change in the government of the State of Maharashtra
2. The Shiv Sena was founded in 1966 in Maharashtra. The
Election Commission of India5 recognizesthe Shiv Sena as a state political
F party. The organizational election of the party for the term extending
from January 2018 to January 2023 was held on 23 January 2018 and
Mr. Uddhav Thackeray was elected as the Party President or the ‘Paksh
Pramukh.’
3. The elections to the 14th Legislative Assembly of Maharashtra
G were held in October 2019. Of a total of two hundred and eighty-eight
seats, the BJP returned candidates in one hundred and six seats, the
1
"NCP”
2
"INC”
3
"MLA”
4
"BJP”
H 5
"ECI”
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 871
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

Shiv Sena in fifty-six seats, the NCP in fifty-three seats, and the INC in A
forty-four seats. Independent candidates were returned in thirteen
constituencies and the remaining constituencies returned candidates from
various other parties. In November 2019, the Shiv Sena, the NCP, and
the INC formed a post-poll alliance which came to be known as the
Maha Vikas Aghadi.6 The MVA successfully staked a claim to form the
B
government in Maharashtra and Mr. Uddhav Thackeray was sworn in
as the Chief Minister. On 25 November 2019, pursuant to a meeting
chaired by Mr. Uddhav Thackeray, all fifty-six MLAs of the Shiv Sena
issued a communication to the Speaker of the Maharashtra Legislative
Assembly intimating him that Mr. Eknath Shinde was appointed as the
Group Leader of the Shiv Sena Legislature Party7 and that Mr. Sunil C
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 D
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 E
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 F
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 were in attendance passed a resolution removing Mr.
Eknath Shinde from the position of the Group Leader of the SSLP and
appointing one Mr. Ajay Choudhari in his place. The decisions taken by
way of this resolution were communicated to the Deputy Speaker on G
the same day, i.e., 21 June 2022. Also on the same day, the Deputy
Speaker communicated his acceptance of the change in the Group
Leader of the SSLP.
6
"MVA”
7
“SSLP” H
872 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 7. Concurrently, thirty-four MLAs of the Shiv Sena (i.e., the
respondents) organized a separate meeting and passed a resolution
reaffirming that Mr. Eknath Shinde “continues to be” the Group Leader
of the SSLP. It was further resolved that the appointment of Mr. Sunil
Prabhu as the Chief Whip was cancelled, and that Mr. Bharat Gogawale
was appointed in his place. The resolution is dated 21 June 2022 and
B
was purportedly passed in Guwahati, Assam. The petitioners claim that
it was received by the Deputy Speaker only on 22 June 2022 while the
respondents claim that it was sent on 21 June 2022.8. Mr. Eknath Shinde
wrote to the Deputy Speaker communicating the details of the resolution
passed by the thirty-four MLAs of the Shiv Sena, by which his
C appointment as the Group Leader of the SSLP was reaffirmed. He
requested the Deputy Speaker not to recognize Mr. Ajay Choudhari as
the Group Leader in view of the resolution reaffirming his appointment.
Once again, the petitioners claim that the Deputy Speaker received this
communication on 22 June 2022 and the respondents aver that it was
sent on 21 June 2022.
D
9. The same thirty-four MLAs also issued a notice to Mr. Narhari
Zirwal, the Deputy Speaker, stating that he no longer enjoyed their support
and calling upon him to move a motion for his removal from office. The
notice was issued under Article 179(c) of the Constitution read with
Rule 11 of the Maharashtra Legislative Assembly Rules 2019. The
E petitioners claim that this notice, too, was received by the Deputy Speaker
on 22 June 2022. The respondents maintain that it was sent on the
preceding day, 21 June 2022.
10. On 22 June 2022, Mr. Sunil Prabhu issued individual
communications to all MLAs of the Shiv Sena, calling upon them to
F attend a meeting of the SSLP scheduled to take place that evening at
Mr. Thackeray’s residence. The communication stated as follows:
“…failure to participate in the meeting without providing valid
and adequate reasons in writing, communicated in advance to the
undersigned, will result in consequential action against you under
the relevant provisions of the Constitution of India.”
G
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:
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 873
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

a. A meeting of forty-five MLAs of the Shiv Sena was held A
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 B

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. C

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 Shinde and fifteen other MLAs of the
Shiv Sena. The Deputy Speaker issued notices in these disqualification
petitions on 25 June 2022. The relevant portion of the order issuing notice D
is reproduced below:
“You are instructed to submit written submissions as per the
procedure laid in the Members of Maharashtra Legislative
Assembly (Disqualification on Ground of Defection) Rules 1986
by Monday, 27th June 2022 by 5.30 pm to Deputy Speaker.” E
13. On 27 June 2022, the jurisdiction of this Court under Article
32 was invoked by the respondents challenging the notice issued in the
disqualification petitions. This Court passed an interim order on the same
day in the following terms, extending the time to respond to the
disqualification petitions from 27 June 2022 to 12 July 2022: F
“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.”
14. Separately, Mr. Sunil Prabhu filed petitions for the G
disqualification of two independent MLAs as well as one MLA of the
Prahar Janshakti Party on 25 June 2022 and against twenty-two MLAs
of the Shiv Sena on 27 June 2022.
15. On 28 June 2022, the then Leader of Opposition Mr. Devendra
Fadnavis addressed a letter to the Governor inter alia conveying that H
874 SUPREME COURT REPORTS [2023] 8 S.C.R.

A he believed that the then Chief Minister, Mr. Thackeray, did not enjoy a
majority on the floor of the House. He called upon the Governor to
direct Mr. Thackeray to prove his majority on the floor of the House.
Seven MLAs who were elected as independent candidates penned a
similar letter to the Governor on the same day. They too requested the
Governor to direct Mr. Thackeray to prove his majority on the floor of
B
the House.
16. The Governor issued a letter to the then Chief Minister, Mr.
Uddhav Thackeray on 28 June 2022, calling upon him to face a floor test
on 30 June 2022. The communication specified the manner in which the
trust vote was to be conducted in the following terms:
C
“(i) A Special session of the Maharashtra Vidhan Sabha be
summoned on 30.06.2022 at 11:00 AM with the only agenda of a
trust vote against the Government.
(ii) The business of the house shall be conducted in such a way
D that the speeches, if any, are concluded in a 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.
E (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.
F
(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
G 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.
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 875
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

17. On the very next day (29 June 2022), Mr. Sunil Prabhu instituted A
a Writ Petition before this Court for setting aside the communications
dated 28 June 2022 issued by the Governor to the Chief Minister as also
to the Secretary, Maharashtra Legislative Assembly, on the ground that
disqualification petitions against forty-two MLAs of the Shiv Sena were
pending consideration before the Deputy Speaker. This Court declined
B
to stay the trust vote. The relevant portion of the order dated 29 June
2022 passed by this Court is reproduced below:
“8 …
(i) We do not find any ground to stay convening of the Special
Session of the Maharashtra Vidhan Sabha on 30-6-2022, i.e,
tomorrow at 11.00 a.m. with the only agenda of a trust vote; C
(ii) The proceedings of the trust vote to be convened on 30-6-2022
shall be subject to the final outcome of the instant Writ Petition as
well the Writ Petitions referred to above;
(iii) the Special Session of the Maharashtra Vidha Sabha shall be
conducted in accordance with the directions as contained in the D
communication dated 28-6-2022 of the Governor of Maharashtra.”
Mr. Thackeray, resigned on the same day.
18. On 30 June 2022, Mr. Devendra Fadnavis wrote a letter to
the Governor stating that one hundred and six MLAs from BJP and
eight independent and other MLAs were extending support to Mr. Eknath E
Shinde to form the government. On the same day, Mr. Shinde submitted
a letter to the Governor along with a resolution by thirty-nine MLAs
from the SSLP unanimously resolving to authorise Mr. Shinde to initiate
proceedings to form the government in the State. In said letter, Mr. Shinde
claimed the support of one hundred and six BJP MLAs and seventeen F
independent and other MLAs. Moreover, Mr. Shinde claimed that he
had the support of the majority and requested the Governor to invite him
to take oath as the Chief Minister. On 30 June 2022, sixteen MLAs who
were independent candidates or belonged to parties other than the Shiv
Sena, BJP, INC, and NCP wrote to the Governor expressing their support
for a government led by Mr. Shinde. On the same day, the Governor G
issued a communication to Mr. Shinde inviting him to take oath as the
Chief Minister and requesting him to prove that he enjoyed the confidence
of the Assembly within a period of seven days of taking over as the
Chief Minister.
H
876 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 19. The Governor administered the oath of office to Mr. Shinde
and Mr. Fadnavis 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
B
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
C 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.
D 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 two whips on 2 July 2022. The first whip directed all
E MLAs of the Shiv Sena to attend the session of the Maharashtra
Legislative Assembly on 4 July 2022 and vote against the motion of
confidence for the Council of Ministers headed by the Chief Minister,
Mr. Shinde. The second whip directed all MLAs of the Shiv Sena to
attend the session of the Maharashtra Legislative Assembly on 3 July
F 2022 and vote for the Shiv Sena’s candidate, Mr. Rajan Salvi, in the
election for the post of the Speaker.
22. The election for the post of the Speaker was conducted as
scheduled and Mr. Rahul Narwekar of the BJP emerged victorious, with
a total of one hundred and sixty-four votes cast in his favour. Thirty-nine
MLAs of the Shiv Sena (led by Mr. Shinde) voted in favour of Mr.
G
Rahul Narwekar’s candidature. Consequently, Mr. Sunil Prabhu instituted
fresh disqualification proceedings against these MLAs under Paragraph
2(1)(b) of the Tenth Schedule to the Constitution for violating the whip
issued by him.

H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 877
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

23. After assuming office as the Speaker of the House, Mr. Rahul A
Narwekar cancelled the approval granted to Mr. Ajay Choudhari as the
Leader of the SSLP and approved the appointment of Mr. Eknath Shinde
in his place. Further, he recognized Mr. Bharat Gogawale as the Chief
Whip of the Shiv Sena in place of Mr. Sunil Prabhu. These decisions of
the Speaker were recorded in a communication dated 3 July 2022 issued
B
by the Deputy Secretary of the Maharashtra Legislative Assembly, the
relevant portion of which is extracted below:
“…after deliberation … Hon’ble Speaker, Maharashtra Legislative
Assembly has cancelled the approval granted to Shri Ajay
Choudhari as leader, Shiv Sena Legislative Party and approves &
recognizes the nomination of Shri Eknath Shinde as Leader, Shiv C
Sena Legislative Party as per the letter dated 31st October 2019.
Similarly, the proposal to nominate Shri Sunil Prabhu as Chief
Whip of Shiv Sena Legislative Party is to be cancelled and to
recognize the nomination of Shri Bharat Gogawale as Chief Whip
of ShivSena Legislative Party has been approved and recorded in D
the registry.”
Mr. Bharat Gogawale issued a whip on 3 July 2022 directing all
MLAs of the Shiv Sena to attend the session of the Maharashtra
Legislative Assembly on 4 July 2022 and vote in favour of the motion of
confidence for the Council of Ministers headed by the Chief Minister, E
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. F
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 G
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
H
878 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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.
26. On 4 July 2022, a motion of confidence was moved on the
B floor of the Maharashtra Legislative Assembly. The House expressed
its confidence in Mr. Shinde. As a consequence, Mr. Sunil Prabhu filed
fresh petitions for the disqualification of thirty-nine MLAs (led by Mr.
Shinde) under Paragraph 2(1)(b) of the Tenth Schedule for violating the
whip issued by him on 2 July 2022. Similarly, Mr. Bharat Gogawale filed
petitions for the disqualification of fourteen MLAs of the Shiv Sena (led
C by Mr. Thackeray) under Paragraphs 2(1)(a) and 2(1)(b) of the Tenth
Schedule for violating the whip issued by him on 3 July 2022. On 8 July
2022, Mr. Rahul Narwekar issued notices in the latter set of
disqualification petitions.
iii. The proceedings before the Election Commission of
D India
27. On 19 July 2022, Mr. Eknath Shinde filed a petition before the
ECI under Paragraph 15 of the Election Symbols (Reservation and
Allotment) Order 19688 for the allotment of the symbol of the Shiv Sena,
i.e., the ‘bow and arrow,’ to the faction led by him. The ECI directed the
E groups led by Mr. Shinde and Mr. Thackeray to furnish their written
submissions and any documents in favour of their claims.
28. Thereafter, the petitioners filed two interlocutory applications
for the impleadment of the ECI in WP(C) 493 of 2022 and for a stay on
the proceedings before the ECI. The first of these (for impleadment of
F the ECI) was allowed by this Court by its order dated 27 September
2022. The interlocutory application seeking a stay was dismissed by the
same order.
29. On 17 October 2022, the ECI passed an order granting the
‘bow and arrow’ symbol to the group led by Mr. Shinde.
G B. Overview of the reliefs sought in the present proceedings
30. These proceedings arise from six Writ Petitions filed by
members of the groups led by both Mr. Thackeray as well as Mr. Shinde.
The reliefs sought in each of these petitions are captured in the table
below, for ease of reference:
8
H "Symbols Order”
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 879
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

Case details Relief sought A
WP(C) 493 of 2022 a. Quash the decision of the Governor dated 30 June 2022
inviting Mr. Eknath Shinde to take oath as the Chief
Minister of Maharashtra, and form the Government; and/or

b. Quash the proceedings of the Maharashtra Legislative B
Assembly held on 3 July 2022, and consequently the
election of the Speaker; and/or

c. Quash the proceedings of the Maharashtra Legislative
Assembly held on 4 July 2022, and consequently the C
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 D
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 E
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;
F
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
G
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 Deputy
H
880 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Speaker recognising the appointment of Mr. Ajay
Choudhari as the Leader of the Shiv Sena Legislature
Party;

e. Direct the Union of India and the Director General of
B Police, Maharashtra to provide security to the family of
Mr. Eknath Shinde and all his supporters within the Shiv
Sena Legislature Party.

WP(C) 468 of 2022 a. Direct the Deputy Speaker to not take any action in the
C petitions for disqualification of the petitioners in this
petition under Paragraph 2(1)(a) of the Tenth Schedule
until the resolution for the removal of the Deputy Speaker
is decided;

D b. In the interim, to stay the effect and operation of the notice
dated 25 June 2022 issued to the Petitioners by the Deputy
Speaker;

c. Direct the DGP, Maharashtra to ensure that there shall be
E no hindrance to any of the MLAs taking recourse to their
rights and liberties as citizens and arrange for security to
be provided to all the MLAs and their families.

F WP(C) 479 of 2022 a. Quash the communication dated 3 July 2022 issued by the
Speaker of the Maharashtra Legislative Assembly.

WP(C) 470 of 2022 a. Set aside the communication dated 28 June 2022 sent by
the Governor to Mr. Uddhav Thackeray as well as to the
G Secretary, Maharashtra Legislative Assembly.

C. The reference
31. The Writ Petitions described in the previous segment of this
judgment were listed before a three-Judge Bench of this Court on 4
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 881
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

August 2022, when Mr. Kapil Sibal and Dr. Abhishek Manu Singhvi, A
learned senior counsel appearing on behalf of the petitioners and Mr.
Harish Salve, learned senior counsel appearing on behalf of the
respondents advanced arguments on whether the issues raised in these
petitions required reference to a five-judge Bench of this Court.
32. By its order dated 23 August 2022, this Court accepted the B
submission that this batch of Writ Petitions ought to be referred to a
five-Judge Bench under Article 145(3) of the Constitution as substantial
questions of law remained to be decided.It accordingly referred the
matter. The following questions were framed for consideration:
a. Whether a notice for removal of a Speaker restricts them
from continuing with disqualification proceedings under C
Tenth Schedule of the Constitution, as held by this Court in
Nabam Rebia & Bamang Felix v. Deputy Speaker,
Arunachal Pradesh Legislative Assembly;9
b. Whether a petition under Article 226 or Article 32 lies,
inviting a decision on a disqualification petition by the High D
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 E
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 F
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 legislature party? What G
is the interplay of the same with respect to the provisions
of the Tenth Schedule;
h. Are intra-party decisions amenable to judicial review? What
is the scope of the same;i. What is the extent of discretion
9
(2016) 8 SCC 1 H
882 SUPREME COURT REPORTS [2023] 8 S.C.R.

A and power of the Governor to invite a person to form the
Government, and whether the same is amenable to judicial
review; and
j. What is the scope of the powers of the Election Commission
of India with respect to the determination of a split within a
B party.
D. Submissions
i. Submissions on whether Nabam Rebia’s case ought to be
referred to a larger Bench

C 33. Learned senior counsel appearing on behalf of the parties
addressed this Court on the first of the issues specified in the preceding
paragraph, that is, on whether a notice of intention to move a resolution
for the removal of a Speaker restricts them from continuing with
disqualification proceedings under the Tenth Schedule of the Constitution,
as held by this Court in Nabam Rebia (supra).
D
34. Mr. Kapil Sibal, Dr. Abhishek Manu Singhvi and Mr. Devadatt
Kamat, learned senior counsel advanced submissions on behalf of the
petitioners. Their submissions were opposed by Mr. Harish Salve, Mr.
Neeraj Kishan Kaul, Mr. Mahesh Jethmalani, Mr. Maninder Singh and
Mr. Siddharth Bhatnagar, learned senior counsel appearing for the
E respondents. Mr. Tushar Mehta, learned Solicitor General, appeared on
behalf of the Governor of the State of Maharashtra.
35. In Nabam Rebia (supra), a Constitution Bench of this Court
inter alia ruled that it is impermissible for a Speaker to adjudicate upon
disqualification petitions under the Tenth Schedule after a notice of
F intention to move a resolution for their removal from the office of the
Speaker is issued. The petitioners have urged that this aspect of the
decision in Nabam Rebia (supra) ought to be referred to a Bench of
seven Judges of this Court because:
a. In Kihoto Hollohan v. Zachillhu,10 a Constitution Bench
G of this Court held that the Court cannot interfere in
disqualification proceedings under Paragraph 6 of the Tenth
Schedule at an interlocutory stage save in exceptional
circumstances. In terms of the decision in Nabam Rebia
(supra), the proceedings under the Tenth Schedule would
10
H (1992) Supp (2) SCC 651
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 883
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

be interdicted upon the issuance of a notice of intention to A
move a resolution for the removal 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
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 C
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 D
with disqualification proceedings under the Tenth Schedule
when a notice of intention to move a resolution fortheir
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 E
Speaker as an Officer of the State Legislature;
ii. Disrupting the continuity in the functioning of the Tribunal
under Paragraph 6 of the Tenth Schedule; and
iii. Creating a constitutional hiatus in the operation of the Tenth F
Schedule.
d. The decision in Nabam Rebia (supra) is based on the
interpretation of the phrase “all the then Members of the
Assembly” in Article 179(c) of the Constitution to mean
that the composition and strength of the House cannot be
G
altered once a notice of intention to move a resolution for
the removal of the Speaker is issued. This interpretation is
contrary to:
i. The plain language of Article 179;
ii. The import of Article 181; and H
884 SUPREME COURT REPORTS [2023] 8 S.C.R.

A iii. The deliberations in the Constituent Assembly Debates.
e. In terms of the decision of this Court in Rajendra Singh
Rana v. Swami Prasad Maurya,11 the disqualification of
an MLA relates back to the date on which they engaged in
the conduct proscribed under the Tenth Schedule. The
B scheme of the Constitution does not envisage the possibility
of disqualified MLAs issuing a notice of intention to move
a resolution for the removal of the Speaker after the date
on which they engaged in the proscribed conduct.
36. The respondents opposed the submissions urged on behalf of
C the petitioners. They submitted that the decision in Nabam Rebia (supra)
is not required to be referred to a Bench of seven Judges of this Court
for the following reasons:
a. The decision in Nabam Rebia (supra) is based on ethical
and constitutional considerations. If an MLA is unjustly
D disqualified by the Speaker and their disqualification is set
aside by the courts, they would have been deprived of the
opportunity to vote on the resolution for the removal of the
Speaker as well as the opportunity to participate in other
proceedings of the House. On the other hand, if the Speaker
is unjustly removed from office, they do not lose
E membership of the House and consequently retain the right
to participate in the proceedings of the House. They may
also be re-elected as the Speaker;
b. The Speaker may act as a Tribunal under the Tenth Schedule
only when they enjoy the confidence of the House;
F
c. Article 181(1) provides that the Speaker cannot preside in
the Legislative Assembly when a motion for their removal
is pending;
d. The decision in Kihoto Hollohan (supra) is an exception
and not a general rule. Disabling the Speaker from deciding
G
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
11
H (2007) 4 SCC 270
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 885
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

e. In Nabam Rebia (supra), the Constitution Bench addressed A
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.
B
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 C
(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 member D
of a House from disqualification is incorrect because
members can always be subjected to disqualification
proceedings by a Speaker whose majority in the House is
not under a cloud of suspicion;
d. Although the Speaker performs different functions as a E
“Tribunal” under the Tenth Schedule and as an “officer of
the State Legislature” under the rules of the House, their
authority to perform both functions is derived from the same
source which is the confidence of the majority of the House;
and F
e. Nabam Rebia (supra) does not conflict with Kihoto
Hollohan (supra) because the latter permits quia timet
actions where there are “grave, imminent and irreparable
consequences.”
38. By its order dated 17 February 2023, this Court directed that G
the issue of whether a reference of the decision in Nabam Rebia (supra)
to a larger Bench was warranted, would be determined together with
the merits of the case. The order reads thus:
“8. The issue of whether a reference to a Bench of seven Judges
should be made cannot be considered in the abstract; isolated or H
886 SUPREME COURT REPORTS [2023] 8 S.C.R.

A divorced from the facts of the case. Whether, the above principle
which has been formulated in Nabam Rebia (supra) has an impact
upon the factual position in the present case, needs deliberation.
9. In the above backdrop, the issue whether a reference of the
decision in Nabam Rebia (supra) to a larger Bench is warranted,
B would be determined together with the merits of the case.”
39. Learned counsel appearing for the parties were then heard on
the merits of the case.
ii. Submissions on the merits of the case

C 40. Mr. Kapil Sibal, learned senior counsel appearing on behalf of
the petitioners made the following submissions:
a. A constitutional court, by virtue of its power under Articles
32 and 226 of the Constitution can decide whether an MLA
is disqualified under the provisions of the Tenth Schedule.
D This Court has recognised this exceptional power in
Rajendra Singh Rana (supra). The following exceptional
circumstances indicate that this Court must decide the
disqualification petitions in these proceedings:
i. The constitutionality of events which succeeded the
filing of the disqualification petitions, namely, the
E
direction of the Governor on 28 June 2022 to the
then Chief Minister Mr. Uddhav Thackeray to facea
floor test, the swearing in of Mr. Eknath Shinde as
the Chief Minister on 30 June 2022, the appointment
of the Speaker on 3 July 2022, the floor test held on
F 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
G 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
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 887
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

Shinde and Mr. Bharat Gogawale respectively. The A
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 B
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 Schedule against the faction of legislators
led by Mr. Eknath Shinde because: C
I. They deliberately did not attend the SSLP
meetings held on 21 June 2022 and 22 June
2022;
II. On 22 June 2022, they passed illegal resolutions
appointing Mr. Shinde as the Leader of the D
SSLP, and Mr. Gogawale as the Chief Whip;
and
III. The faction led by Mr. Shinde met the
Governor along with Mr. Devendra Fadnavis,
the then Leader of Opposition. The alliance E
of legislators of Mr. Shinde’s faction with the
BJP was against the wishes of the Shiv Sena
political party.
v. In the facts of the present case, a per se case of
disqualification is made out under Paragraph 2(1)(b) F
of the Tenth Schedule against the faction of legislators
led by Mr. Eknath Shinde. On 2 July 2022, Mr. Sunil
Prabhu issued a whip for the election of the Speaker.
The faction of legislators led by Mr. Shinde violated
the whip and voted in favour of Mr. Rahul Narwekar,
who was the candidate nominated by the BJP. G
vi. Disqualification under the Tenth Schedule relates
back to the date on which the MLA engaged in the
act incurring disqualification. Thus, the outcome of
the proceedings on the floor of the House which took
place during the pendency of the disqualification H
888 SUPREME COURT REPORTS [2023] 8 S.C.R.

A proceedings would depend on the decision of the
Speaker on the disqualification petitions. In the same
vein, the outcome of the trust vote would depend on
the decision in the disqualification proceedings.
Additionally, this Court by its order dated 29 June
2022 while dismissing the writ petition filed by the
B
petitioners seeking a stay on the direction of the
Governor to hold a trust vote, observed that the
proceedings of the trust vote shall be subject to the
final outcome of the writ petition;
vii. The faction of legislators led by Mr. Shinde have
C asserted that they are the “real” Shiv Sena. They
have also initiated proceedings under Paragraph 15
of the Symbols Order. The defence of the
respondents in effect is that of a split. The defence
of split having been deleted from the Tenth Schedule
D by the Constitution(Ninety-first Amendment) Act
2003 cannot be used by the respondents as a defence
for actions that incur disqualification;
b. The purported resolution dated 21 June 2022 passed by the
respondents appointing Mr. Gogawale as the Chief Whip,
E and the communication of the Speaker dated 3 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:

F 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
G 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;12
12
H (1998) 7 SCC 517
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 889
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

ii. A majority faction of the legislature party cannot be A
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 195613 provides that the Chief Whip inrelation to B
the Maharashtra Legislative Assembly means a
member of the House who has been declared as the
Whip by the party forming the government;
iv. The Constitution (Fifty-second Amendment) Act
1985, by introducing disqualification of legislators on C
the ground of defection, recognised the role of political
parties in parliamentary democracy;
v. The decision of the Speaker ought to be set aside on
the ground of procedural irregularity. The Speaker
did not provide the political party with an opportunity
D
of being heard before issuing the communication
dated 3 July 2022 recognising Mr. Gogawale as the
Chief Whip;
vi. The decision of the Speaker recognising a whip is
not excluded from judicial review by the provisions
of Article 212 of the Constitution. Article 212 only E
precludes judicial review of ‘proceedings in the
Legislature of the State’ on the ground of procedural
irregularity. This Court in Raja Ram Pal v.
Hon’ble Speaker, Lok Sabha14 has held that Article
212 does not exclude judicial review on the grounds F
of substantive or gross illegality; and
vii. The Leader of the legislature party must be appointed
only by the political party. The link between the
political party and the legislature party would be
severed if the legislature party is permitted to appoint
G
a Leader different from the candidate selected by
the political party.
c. An MLA who the Speaker holds to have voluntarily given
up membership for the purpose of the Tenth Schedule
13
"Act of 1956"
14
(2007) 3 SCC 184 H
890 SUPREME COURT REPORTS [2023] 8 S.C.R.

A cannot initiate proceedings under Paragraph 15 of the
Symbols Order because they will no longer be a part of the
political party. Thus, members of a splinter faction who have
been disqualified cannot be permitted to stake a claim under
the Symbols Order as the political party;
B d. The decision of the ECI does not have any bearing on
proceedings under the Tenth Schedule because: (i)
Disqualification relates back to the date of the actions which
led to the incurring of disqualification; and (ii) The decision
of the ECI will only have a prospective effect either from
the date on which proceedings were instituted under
C Paragraph 15 of the Symbols Order or the decision of the
ECI in those proceedings;
e. The communication of the Governor dated 28 June 2022
calling for a trust vote is illegal. The Governor’s power to
call for a trust vote is not unrestrained. The Governor’s
D decision to call for a floor test is subject 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
E 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
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
G
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;
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 891
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

iii. The recommendations of the Sarkaria Commission A
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.15 The Governor did not follow
this order of precedence;
B
iv. The decision of the Speaker disqualifying a member
is ex post facto. The Speaker must decide as on
facts that existed on the date the alleged action
incurring disqualification had taken place. A
disqualified member of the Assembly cannot be
appointed as a Minister in view of the bar in Article C
164(1-B) of the Constitution.
g. The order of this Court dated 27 June 2022 created a hiatus
in the operation of the Tenth Schedule.
41. Dr. Abhishek Manu Singhvi, learned senior counsel appearing
on behalf of the petitioners made the following submissions: D

a. The status quo ante as on 27 June 2022 ought to be restored
for the following reasons:
i. The order of this Court on 27 June 2022 extending
the time granted to the respondents to respond to the E
disqualification petitions created a negative injunction
on the functioning of the Speaker. The order of this
Court on 29 June 2022 declining to stay the trust vote
was a positive order. The Government in the State
of Maharashtra would not have changed ‘but for’
the above orders of this Court (relied on Indore F
Development Authority v. Manohar Lal;16
ii. The order of this Court on 27 June 2022 is contrary
to the judgment of the Constitution Bench in Kihoto
Hollohan (supra)where it was held that judicial
review cannot be made available at a stage prior to G
the decision of the Speaker under the Tenth Schedule.
By this order, the court tilted the delicate balance of
unfettered functioning of different constitutional
functionaries in their respective spheres;
15
(2006) 2 SCC 1
16
(2020) 8 SCC 129 H
892 SUPREME COURT REPORTS [2023] 8 S.C.R.

A iii. The order of this Court on 29 June 2022 held that the
trust vote would be “subject to the final outcome of
the instant writ petition as well as the writ petitions
referred above.” Thus, the consequences and the
new status quo created must be subject to the final
outcome of the instant proceedings. Status quo ante
B
ought to be restored as on 27 June 2022. The power
of the court to restore status quo ante is not unheard
of. This Court directed status quo ante in Nabam
Rebia (supra); and
iv. This Court must direct status quo ante to give effect
C to the object behind the introduction of the Tenth
Schedule, which is to curb the evil of political
defections;
b. Immediately after his appointment as the Speaker on the
evening of 3 July 2022, Mr. Rahul Narwekar recalled the
D 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,
E 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
F petitions;
c. The Governor could not have directed a trust vote when
the legality of the disqualification petitions was pending
consideration;

G 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 SR Bommai v. Union of India17 held that
it would be open to the Court to restore status quo ante
17
H (1994) 3 SCC 1
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 893
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

before the issuance of the proclamation if the presidential A
proclamation was invalid. It was held that status quo ante
could be restored even if the proclamation is approved by
both the Houses of Parliament. It was also held that it would
be open to the court to mould the relief while restoring status
quo ante. Thus, this Court has the power to mould relief by
B
holding that legislations passed in the intervening period
would not be invalid but other actions during the pendency
of the disqualification proceedings such as the election of
the Speaker would be invalid if those who voted for the
Speaker are held to have incurred disqualification;
f. Article 189(2) extends only to situations where there is a C
challenge to the proceedings solely because of the eligibility
of the members and there is no per se challenge to the
validity of the proceedings. However, in the instant case,
there is a prior challenge to the decision of the Governor to
direct a trust vote. This action of the Governor cannot be D
immunised from judicial review by virtue of Article 189(2);
g. The resignation of Mr. Uddhav Thackeray on 29 June 2022
cannot dilute the illegality of the action of the Governor in
directing a trust vote;
h. The decision of the ECI under Paragraph 15 of the Symbols E
Order will have prospective effect. The decision of the ECI
recognising one of the factions as the Shiv Sena for the
purposes of the Symbols Order cannot be applied
retrospectively to the pending disqualification petitions. Such
an interpretation would also be contrary to settled law that F
disqualification relates back to the date when the actions
constituting defection were committed; and
i. MLAs who are dissatisfied with the status quo of the political
party are entitled to resort to a merger under paragraph 4,
or resign and re-contest elections, or apply to the ECI under G
Paragraph 15 of the Symbols Order for recognition of their
faction as the political party and await the decision of the
ECI. The members ought to be disqualified if they have
chosen to act in a manner that is prohibited under the Tenth
Schedule.
H
894 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 42. Mr. Devdatt Kamat, learned senior counsel appearing on behalf
of the petitioners made the following submissions:
a. The term ‘political party’ as it occurs in the Tenth Schedule
relates to the association of persons registered under Section
29A of the Representation of the People Act 1951. ‘Political
B party’ refers to the 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
C represent the political party as a defence to the
disqualification petitions instituted against them. Any such
factionis 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;
D
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
E 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 18 maybe altered based on the
adjudication of the disqualification proceedings.
F 43. Mr. Neeraj Kishan Kaul, learned senior counsel appearing on
behalf of the respondents, made the following submissions:
a. In terms of Paragraph 6 of the Tenth Schedule, the Speaker
is the sole constitutional authority to adjudicate upon the
issue of disqualification. Moreover, Article 212(1) of the
G Constitution provides that the validity of proceedings of the
state legislature cannot be called into question before courts.
The petitioners are attempting to surpass the constitutional
authority of the Speaker to adjudicate upon the
disqualification petitions;
18
H (1972) 4 SCC 664
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 895
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

b. The concept of per se disqualification is unknown to the A
Constitution. Any decision as to the disqualification
proceedings under the Tenth Schedule must be taken after
following the due process of law and the principles of natural
justice. A member incurs disqualification only after
adjudication by the Speaker. The procedure for the
B
adjudication of disqualification petitions is prescribed under
the Maharashtra Legislative Assembly (Disqualification on
Ground of Defection) Rules 1986;19
c. The MLAs facing disqualification retain the right to
participate in the proceedings of the House and vote on
resolutions. Article 189(2) of the Constitution provides that C
any proceedings of the House are not invalid even if it is
subsequently discovered that persons who were not entitled
to participate or vote or otherwise take part in the
proceedings, did so. In Pratap Gouda Patil v. State of
Karnataka20 and Speaker, Haryana Vidhan Sabha v. D
Kuldeep Bishnoi,21 this Court observed that members
should not be stopped from taking part in the proceedings
of the House merely because disqualification proceedings
were pending against them;
d. Prior to the deletion of Paragraph 3 of the Tenth Schedule, E
the Speaker’s enquiry as to the existence of a split within a
political party was limited to a prima facie determination
for deciding the disqualification proceedings. As a result of
the deletion of Paragraph 3, the authority of the Speaker to
form even a prima facie opinion regarding a split within a
political party has been removed. Upon the deletion of F
Paragraph 3, the only defence for disqualification
proceedings under the Tenth Schedule is that of a merger
under Paragraph 4. The ECI is the sole authority empowered
to decide disputes between rival factions of a political party
according to the provisions of the Symbols Order; G
e. A majority of a legislature party may appoint the Leader
and the Chief Whip of the legislature party. The 1986 Rules
19
"1986 Rules”
20
(2019) 7 SCC 463
21
(2015) 12 SCC 381 H
896 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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:
C
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
D 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
the Legislative Assembly.
E 44. Mr. Tushar Mehta, learned Solicitor General, appearing on
behalf of the Governor, made the following submissions:
a. The decision of the Governor calling upon Mr. Thackeray
to prove his majority on the floor of the House was justified
because:
F
i. The Governor has a constitutional obligation to ensure
that the Council of Ministers led by the Chief Minister
enjoys the support of the majority of the House. The
Governor directed Mr. Thackeray to face the floor
test based on the prevailing circumstances and the
G material before him;
ii. In directing the floor test, the Governor did not decide
who enjoys the majority in the Legislative Assembly.
Further, he did not decide any matter pertaining to
the disqualification petitions or the split within the Shiv
H Sena;
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 897
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

iii. The Governor is not precluded from exercising their A
discretionary power to call for a floor test.
Constitutional propriety requires the Governor to act
independently and call for an immediate floor test
when serious doubts have been raised about the
majority enjoyed by the incumbent government in the
B
Legislative Assembly. In the present case, the
Governor called for the floor test based on the
following objective facts:
I. The letter dated 21 June 2022 along with the
resolution signed by thirty-four MLAs of the
SSLP reaffirming support to Mr. Shinde as the C
Leader of the SSLP;
II. The letter dated 25 June 2022 addressed by
thirty-eight MLAs of the SSLP claiming that
the lives of the MLAs and their family
members were under threat, as was their D
property; and
III. The letter dated 28 June 2022 by the Leader
of Opposition requesting him to call upon the
then-Chief Minister to prove his majority on
the floor of the Legislative Assembly. E

b. The Supreme Court in S R Bommai (supra) and Shivraj
Singh Chouhan v. Union of India22 held that calling for
an immediate floor test is the most appropriate measure in
case any doubt arises as to whether the Chief Minister and
the Council of Ministers enjoy the confidence of the House; F
c. The issue of the propriety of the Governor’s action calling
Mr. Thackeray to prove his majority on the floor of the
House has become infructuous because the latter did not
face the floor test and instead resigned from the post of
Chief Minister; and G
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:

22
(2020) 17 SCC 1 H
898 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B 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.
C 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
D 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 member by the Speaker under the
Tenth Schedule has drastic consequences. There can never
E
be an automatic or deemed disqualification of an elected
representative without affording any opportunity of hearing
(relied on Kshetrimayum Biren Singh v. Hon’ble
Speaker, Manipur Legislative Assembly23);
c. The Tenth Schedule cannot be used to stifle intra-party
F dissent amongst members of the same political party. Intra-
party dissent cannot be termed as defection. Therefore,
the respondents did not indulge in prohibitory conduct under
Paragraph 2(1)(a) of the Tenth Schedule. Any act of
expression of dissent against the leadership of the party
G does not constitute ‘voluntarily giving up membership of
the party’ under Paragraph 2(1)(a). Paragraph 2(1)(b) also
has no applicability in the facts of the present case;
d. After the deletion of Paragraph 3 from the Tenth Schedule,
the Speaker has no jurisdiction to take cognizance of a split
23
H (2022) 2 SCC 759
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 899
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

in a political party. The ECI has the exclusive jurisdiction to A
decide a split in a political party under Paragraph 15 of the
Symbols Order; and
e. The order of this Court on 27 June 2022 granting additional
time to the respondents to reply to the disqualification
petitions was in accordance with the principles of natural B
justice.
46. Mr. Mahesh Jethmalani, learned senior counsel appearing for
the respondents made the following submissions:
a. The concept of ‘deemed disqualification’ does not exist
under the Constitution. Disqualification must be actual and C
there is a mandated procedure for disqualification
proceedings under Rule 7(7) of the 1986 Rules;
b. The Speaker decides disqualification proceedings with
reference to the date of on which action due to which the
MLA is alleged to have incurred disqualification, is D
committed. However, in view of Articles 189(2) and 191(2)
of the Constitution, the order of disqualification only has
prospective effect; and
c. The petitioners instituted disqualification petitions against
sixteen out of the thirty-nine MLAs who were part of Mr. E
Shinde’s faction to entice those against whom petitions were
not filed to gravitate towards Mr.Thackeray’s faction. The
petitioners knew that if all thirty-nine MLAs were
disqualified, the MVA government would fall. Later, on 27
June 2022, a second disqualification petition was filed against
F
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. G
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, H
900 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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
C 48. Article 179 stipulates that a Speaker (or a Deputy Speaker)
may be removed from their office by a resolution passed by a majority
of “all the then members of the Assembly.” Article 179 of the Constitution
reads as follows:
“179. A member holding office as Speaker or Deputy Speaker of
D an Assembly—
…
(c) may be removed from his office by a resolution of the Assembly
passed by a majority of all the then members of the Assembly:
E Provided that no resolution for the purpose of clause (c) shall be
moved unless at least fourteen days’ notice has been given of the
intention to move the resolution:
Provided further that, whenever the Assembly is dissolved, the
Speaker shall not vacate his office until immediately before the
F first meeting of the Assembly after the dissolution.”
49. In Nabam Rebia (supra), the INC formed the government in
Arunachal Pradesh under the leadership of Mr. Nabam Tuki. Mr. Nabam
Rebia was elected as the Speaker of the Arunachal Pradesh Legislative
Assembly. In October 2015, a section of the MLAs of the INC formed
G a separate group and opposed the leadership of the Chief Minister. Twenty
MLAs of the INC along with two independent MLAs wrote to the
Governor claiming that the Chief Minister has lost the trust and confidence
of the House. Later, certain MLAs from the opposition parties issued a
notice of intention to move a resolution for the removal of the Speaker
of the Assembly under Article 179(c) of the Constitution. Thereafter,
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 901
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the Chief Whip of the Congress Legislature Party filed disqualification A
petitions under Paragraph 2(1)(a) of the Tenth Schedule against fourteen
MLAs of the INC for breaching party directions. The Speaker then
issued notices in the disqualification petitions to the MLAs.
50. On 9 December 2015, the Governor issued an order advancing
the session of the Assembly originally scheduled to be held on 14 January B
2016 to 16 December 2015. On the same day, the Governor also issued
a message under Article 175(2). In the message, he fixed the resolution
for the removal of the Speaker as the first item on the agenda of the
House and tasked the Deputy Speaker with conducting the proceedings
of the House. The Governor also directed that the Presiding Officer
shall not alter the party composition in the House till the session was C
prorogued. On 17 December 2015, the Government headed by the Chief
Minister Mr. Nabam Tuki was declared to have lost the confidence of
the House.
51. It was in this context that Nabam Rebia (supra) came to be
decided. A Constitution Bench of this Court in that case (speaking through D
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. E
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: F
“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 G
disqualification petitions under the Tenth Schedule, whilst a notice
of resolution for his own removal, from the Office of the Speaker
is pending, would “appear” to be unfair. Why would a Speaker
who is confident of his majority, fear a floor test? After his position
as the Speaker is affirmed, he would assuredly and with conviction,
H
902 SUPREME COURT REPORTS [2023] 8 S.C.R.

A deal with the disqualification petitions, under the Tenth Schedule.
And, why should a Speaker who is not confident of facing a motion,
for his removal, have the right to adjudicate upon disqualification
petitions, under the Tenth Schedule? The manner in which the
matter has been examined hereinabove, is on ethical
considerations. A constitutional issue, however, must have a
B
constitutional answer. We shall endeavour to deal with the
constitutional connotation of the instant issue, in the following
paragraphs.”
53. Khehar, J. referred to the Constituent Assembly Debates to
elucidate the meaning of the phrase “all the then members of the
C Assembly” as it appears in Article 179(c) (draft Article 158). In the
course of the debates in the Constituent Assembly, Mr. Mohd. Tahir
proposed to substitute the phrase “all the then members of the Assembly”
with the phrase “the members of the Assembly present and voting”.
However, the proposed amendment was negatived. Justice Khehar
D observed that the Constituent Assembly Debates do not appear to have
recorded any discussion on this proposed amendment. Khehar, J. noted
that this meant that the members of the Constituent Assembly used the
phrase to indicate definiteness and that any change in the composition of
the Assembly when the notice of intention to move a resolution for the
removal of the Speaker was pending would conflict with the express
E mandate of Article 179(c):
“191. […] We are satisfied that the words “passed by a majority
of all the then Members of the Assembly”, would prohibit the
Speaker from going ahead with the disqualification proceedings
under the Tenth Schedule, as the same would negate the effect of
F the words “all the then Members”, after the disqualification of
one or more MLAs from the House. The words “all the then
Members”, demonstrate an expression of definiteness. Any change
in the strength and composition of the Assembly, by disqualifying
sitting MLAs, for the period during which the notice of resolution
G for the removal of the Speaker (or the Deputy Speaker) is pending,
would conflict with 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
H sought to be achieved through the Tenth Schedule is clear and
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 903
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unambiguous, and that it is distinct from the purpose sought to be achieved A
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 B
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.” C

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
have a right to participate in the motion moved against the Speaker even
if the order of disqualification was set aside. They would, in his view, D
have been effectively deprived of the opportunity to participate in the
motion against the Speaker. However, the MLAs would not lose their
right to participate if the disqualification petition was taken up after the
motion against the Speaker was put to vote.
56. Referring to the first proviso to Article 179, Misra, J. observed E
that the Speaker would gain an advantage if they were allowed to change
the composition of the Assembly by adjudicating the disqualification
petitions in the fourteen days when the notice was pending. This, he
observed, would result in a constitutional conflict between the role of the
Speaker as the presiding member of the Assembly and the role of the F
Speaker as a Tribunal under the Tenth Schedule. Misra, J. also referred
to the amendment to Article 179(c) (draft Article 158) that was negatived
by the Constituent Assembly, to reach the same conclusion as Khehar,
J. Article 181(2) of the Constitution provides that the Speaker shall have
the right to speak in and take part in the proceedings of the Legislative
Assembly while a resolution for their removal from office is under G
consideration but shall not be entitled to vote in case of an equality of
votes. The learned Judge held that the requirement under Article 181(2)
when contradistinguished with Article 189 restricts the power of the
Speaker to participate in the proceedings seeking their removal since
the Speaker has been given the power to vote in the event of an equality H
904 SUPREME COURT REPORTS [2023] 8 S.C.R.

A of votes under the latter provision. This constitutional design indicated,
in the view of the Judge, that the Speaker cannot be given the power to
interfere with the resolution for their removal.
57. Madan Lokur, J. held that the Court was not called upon to
decide this issue:
B “401. In the view that I have taken, I am of the opinion that the
view expressed by my learned Brothers relating to the power or
propriety of the Speaker taking a decision under the Tenth Schedule
of the Constitution with regard to the fourteen Members of the
Legislative Assembly does not at all arise in these appeals.”
C 58. As noticed in the previous segment of this judgment, this Court
deferred taking a view on the question of whether the decision in Nabam
Rebia (supra) ought to 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
D 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
E 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
F 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:
G
“In view of the gravity of the subject matter of the said
communication, it is imperative that the genuineness of the
communication be verified and ascertained before taking the same
on record. Therefore, unless and until the persons who have
purportedly signed the aforesaid communication satisfy the
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 905
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

undersigned about the authenticity of any such notice, such A
communication is not liable to be taken on record or acted upon.
In view of the same and in my capacity as the Master of House,
unless and until the genuineness and the veracity of any such
communication and its signatories is ascertained, no further action
can be taken and said communication dated 22.06.2022 is therefore B
not being taken on record. Any such notice will only be taken on
record after I am satisfied of its genuineness and authenticity.”
62. It is evident from the above that the Deputy Speaker decided
not to take cognizance of the notice under Article 179(c). We believe
that the Speaker being the adjudicator, their understanding of the C
jurisdiction that they may or may not exercise is of utmost importance.
The Deputy Speaker proceeded to issue notices to the respondents on
25 June 2022, requiring them to file written submissions by 27 June 2022.
The notice was as follows:
“Whereas the Applicant has filed Application Number 1 of 2022 D
for disqualification of you Non-Applicant before Deputy Speaker,
Maharashtra Legislative Assembly, we hereby along with all the
annexed documents issue summons as under. You are instructed
to submit written submissions as per the procedure laid in the
members of Maharashtra Legislative Assembly (Disqualification
on ground of defections) Rules 1986) by Monday, 27th June 2022 E
by 5.30 pm to Deputy Speaker. You are also instructed to submit
all the relevant documents you are going to rely or dependent to
be submitted along with this reply. You also note that, if these
written submissions not given within stipulated time, it will be
assumed that you have nothing to say on this Application & F
decision will be taken accordingly.”
63. As is evident from the above, the Deputy Speaker did not
consider the decision in Nabam Rebia (supra) as an impediment, from
proceeding to adjudicate upon the complaint made under the Tenth
Schedule. G
64. The sixteen MLAs filed a Writ Petition under Article 32 before
this Court being W.P. (C) Nos. 468-469 of 2022 raising two grounds.
The first relates to the disability of the Speaker in proceeding with 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
H
906 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B 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
C 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
D submission cannot be accepted. Although the parties may have addressed
this Court on the applicability of Nabam Rebia (supra), the order dated
27 June 2022 did not rely on Nabam Rebia (supra) to injunct the Deputy
Speaker from adjudicating the disqualification petitions on the ground
that a notice of intention to move a resolution for his removal had been
issued. This Court instead granted an extension of time to the persons
E against whom disqualification petitions were filed, to file their written
submissions, in view of the principles of natural justice.
67. The election of the Speaker was conducted shortly thereafter,
and Mr. Rahul Narwekar was appointed as the Speaker. As a
consequence, the Deputy Speaker was no longer required to discharge
F the functions of the Speaker. It fell to the Speaker to adjudicate any
disqualification petitions that were pending. This being the case, Nabam
Rebia (supra) does not apply to the lis before us. We will therefore
render a verdict on the merits of the matter.
68. The reason why the Deputy Speaker did not proceed with the
G hearing is completely attributable to events that happened thereafter.
After the notice of intention to move a resolution for the removal of the
Deputy Speaker was issued, the subsequent events such as the Governor
calling upon the then Chief Minister to prove the majority on the floor of
the House, followed by the resignation of the then Chief Minister,
formation of the new government, election of the new Speaker and
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 907
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

passing of the trust vote, all in quick succession, happening within a A
fortnight relegated the issue now referred to seven Judges to the backseat.
These events brought about a dramatic change in the power structure
and the reasons for such change became the main challenge and more
fundamental to the present proceedings. The case of the petitioners now
rests on their challenges to the decisions of, (i) the Governor calling
B
upon the then Chief Minister to prove his majority; (ii) swearing in Mr.
Ekanth Shinde as the Chief Minister; (iii) election of the Speaker by the
House which included the thirty-four MLAs who are facing
disqualification notices; and (iv) legality of the trust vote dated 4 July
2022.
69. Although the decision in Nabam Rebia (supra) is not applicable C
to the factual scenario before us, we are alive to the competing
considerations which animated this Court in its order dated 23 August
2022 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 D
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 E
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 F
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 G
independence and impartiality of the Speaker when
adjudicating on proceedings under the Tenth Schedule. In
contrast, in Nabam Rebia (supra), this Court doubted the
ability of the Speaker to remain neutral while deciding
disqualification petitions after a notice of intention to move
a resolution for the removal of the Speaker has been issued. H
908 SUPREME COURT REPORTS [2023] 8 S.C.R.

A b. In Nabam Rebia (supra), this Court referred to the
Constituent Assembly Debates to interpret the phrase “all
the then members” in Article 179(c). This Court noticed
the amendment moved by Mr. Mohd Tahir, proposing that
the term “all the then members of the Assembly” in Article
179(c) (draft Article 158(c)) be replaced with the term “all
B
the members of the Assembly present and voting.” In
Nabam Rebia (supra), this Court noticed that this proposal
was rejected and observed that the “Constituent Assembly
Debates do not appear to have recorded any discussion on
the above amendment.” It was inter alia on this basis that
C this Court held that the phrase “all the then members of the
Assembly” meant that the composition of the Assembly
ought not to be changed after the notice of intention to move
a resolution for the removal of the Speaker (or the Deputy
Speaker) was issued. However, the members of the
Constituent Assembly discussed the import of the phrase
D
“all the then members” occurring in other provisions of the
Constitution. Dr. BR Ambedkar clarified that the phrase
“all the then members” has been used to indicate all
members who are members of Parliament and whose seats
are not vacant, and it does not mean members sitting or
E present and voting. This Court appears not to have noticed
the entirety of the discussion in the Constituent Assembly
regarding the phrase “all the then members” while using
the Constituent Assembly Debates as an internal aid of
interpretation;
F c. Article 181 of the Constitution provides that the Speaker
shall not preside over a sitting of the Legislative Assembly
while a resolution for their removal is under consideration./
It appears that the majority in Nabam Rebia (supra) did
not consider the effect and import of Article 181, and
whether the Constitution envisages the imposition of any
G restriction on the functions of the Speaker beyond the limited
restriction imposed by Article 181;
d. The second proviso to Article 179 provides that whenever
the Assembly is dissolved, the Speaker shall not vacate their
office until immediately before the first meeting of the
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 909
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

Assembly after the dissolution. This Court did not consider A
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 B
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 C
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): D

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 E
been instituted; and
ii. Whether a “constitutional hiatus” in the operation of
the Tenth Schedule ensues because of the temporary
disablement of the Speaker.
F
71. To give quietus to the issue, we refer the following question
(and any allied issues which may arise) to a larger Bench: whether the
issuance of a notice of intention to move a resolution for the removal of
the Speaker restrains them from adjudicating disqualification petitions
under the Tenth Schedule of the Constitution. The matter may be placed
before the Chief Justice for appropriate orders. We accordingly answer G
the question referred to us as noted in Paragraph 32(a) of this judgment.
72. Pending the decision of the larger Bench, as an interim measure,
adoption of the following procedure may subserve the objective of the
Tenth Schedule, Symbols Order as well as Article 179(c). It may also
provide some amount of clarity and certainty. H
910 SUPREME COURT REPORTS [2023] 8 S.C.R.

A a. The investiture of exclusive adjudicatory jurisdiction upon
the Speaker to determine the complaints under the Tenth
Schedule will entitle the Speaker to rule upon and decide
applications questioning their jurisdiction; and
b. (i) The Speaker is entitled to rule on applications which require
B them to refrain from adjudicating proceedings under the
Tenth Schedule on the ground of initiation of a motion for
their removal under Article 179(c). A Speaker can examine
if the application is bonafide or intended only to evade
adjudication;

C (ii) If the Speaker believes that the motion is well founded,
they may adjourn the proceedings under the Tenth Schedule
till the decision for their removal is concluded. On the other
hand, if they believe that the motion is not as per the
procedure contemplated under the Constitution, read with
the relevant rules, they are entitled to reject the plea and
D proceed with the hearing; and
(iii) The decision of the Speaker, either to adjourn the
proceedings under the Tenth Schedule in view of the
pending proceedings under Article 179(c) or to proceed with
the hearing will be subject to judicial review. As the decision
E of the Speaker relates to their jurisdiction, the bar of a
quatimet action, as contemplated in Kihoto Hollohan
(supra) will not apply.
ii. The power of this Court to decide disqualification petitions at
the first instance
F 73. The petitioners have urged that the Speaker cannot be
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.
G
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
H House to make rules on the procedure for deciding any question referred
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 911
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to in Paragraph 6 including the procedure for any inquiry which may be A
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 B
the Speaker. Rule 7 provides that the Speaker may either dismiss the
petition for non-compliance with the requirements laid down under Rule
6 or proceed to determine the question of disqualification against a member
of the House. According to Rule 7(7), the Speaker must grant a
reasonable opportunity to such member to represent their case. Rule 8
provides that the Speaker shall after due consideration of the merits of C
the case either dismiss the disqualification petition or declare that the
member has become subject to disqualification under the Tenth Schedule
by an order in writing. Thus, the Tenth Schedule (read together with the
1986 Rules for Maharashtra) provides a detailed procedure guiding the
exercise of power by the Speaker under the Tenth Schedule. The Speaker D
must decide disqualification petitions by following this procedure.
76. In Kihoto Hollohan (supra), this Court held that the Speaker
is a Tribunal for the purposes of the Tenth Schedule. Therefore, the
exercise of power under the Tenth Schedule is subject to the jurisdiction
of Courts under Articles 136, 226, and 227 of the Constitution. This E
Court further observed that the finality clause contained in Paragraph
6(2) did not completely exclude the jurisdiction of Courts. However, it
was held that such a clause limits the scope of judicial review because
the Constitution intended the Speaker or the Chairman to be “the
repository of adjudicatory powers” under the Tenth Schedule. This Court
held that judicial review is not available at a stage prior to the decision of F
the Speaker or Chairman, save in certain exceptional circumstances
detailed in that case. Thus, Kihoto Hollohan (supra) makes it evident
that the exclusive power to decide the question of disqualification under
the Tenth Schedule vests with the Speaker or Chairman of the House.
77. The petitioners have relied on Rajendra Singh Rana (supra) G
to urge that this Court should invoke its extraordinary jurisdiction and
itself decide the question of disqualification against the respondent MLAs.
Alternatively, it is urged that this Court should direct the Deputy Speaker,
Mr. Zirwal, who was performing the functions of Speaker prior to 3 July
2022, to decide the disqualification petitions. H
912 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 78. In Rajendra Singh Rana (supra), disqualification petitions
were filed against thirteen MLAs of the Bahujan Samaj Party24 on 4
September 2003. On 26 August 2003, the Speaker accepted a split in the
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
B
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
C 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
D 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 decide the question of disqualification in a time-bound
manner; (ii) the Speaker decided the issue of whether there was a split
E in the party without deciding whether the MLAs in question were
disqualified; and (iii) the necessity of an expeditious decision in view of
the fact that the disqualification petitions were not decided by the Speaker
for more than three years and the term of the Assembly was coming to
an end. In view of the above facts and circumstances, this Court was of
F the opinion that remanding the disqualification proceedings to the Speaker
would lead to them becoming infructuous.
80. This Court should normally refrain from deciding disqualification
petitions at the first instance, having due regard to constitutional
intendment. The question of disqualification ought to be adjudicated by
G the constitutional authority concerned, namely the Speaker of the
Legislative Assembly, by following the procedure prescribed.
Disqualification of a person for being a member of the House has drastic
consequences for the member concerned and by extension, for the
citizens of that constituency. Therefore, any question of disqualification
24
H "BSP”
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 913
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ought to be decided by following the procedure established by law. In A
Kshetrimayum Biren Singh (supra), a three-Judge Bench of this Court
set aside the order of the Speaker disqualifying MLAs under Paragraph
2(1)(a) for not granting an opportunity to them to lead evidence and
present their case. The Speaker was directed to decide the disqualification
petitions afresh by complying with the principles of natural justice. Even
B
in cases where the Speaker decides disqualification petitions without
following the procedure established by law, this Court normally remands
the disqualification petitions to the Speaker. Therefore, absent exceptional
circumstances, the Speaker is the appropriate authority to adjudicate
petitions for disqualification under the Tenth Schedule.
81. The petitioners have urged that in view of the facts and C
circumstances, this Court should not remand the disqualification
proceedings to the Speaker of the Maharashtra Legislative Assembly,
on the ground that he has demonstrated himselfto be incapable of acting
fairly and impartially. Before addressing the petitioner’s submission, it is
necessary to refer to the status of the Speaker under the Constitution. D
Article 178 provides that the Legislative Assembly shall, 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.
E
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, F
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 G
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, merely because some of the Speakers are alleged,
or even found, to have discharged their functions not in H
914 SUPREME COURT REPORTS [2023] 8 S.C.R.

A keeping with the great traditions of that high office. The
robes of the Speaker do change and elevate the man inside.”
(emphasis supplied)
83. The petitioners have relied upon the judgment in Shrimanth
Balasaheb Patil v. Speaker, Karnataka Legislative Assembly,25
B where it was observed that the Speaker does not deserve to be reposed
with public trust and confidence if they are not able to dissociate from
their political party and if they act contrary to the spirit of neutrality and
independence. In Shrimanth Balasaheb Patil (supra), the Speaker
issued orders disqualifying certain MLAs, prohibiting them from
C contesting elections and becoming members for the remaining term of
the Legislative Assembly. This Court upheld the decision of the Speaker
on the question of disqualification. However, it held that the Speaker
does not have the power to specify the period of disqualification under
the Tenth Schedule. It was in view of the unconstitutional exercise of
power by the Speaker that this Court expounded on the general principles
D that a Speaker is expected to follow while adjudicating questions of
disqualification.
84. A similar submission was made before this Court in the case
of Keisham Meghachandra Singh v. Hon’ble Speaker Manipur
Legislative Assembly26,where it was submitted that this Court should
E issue a writ of quo-warranto against the appointment of an MLA as a
minister when disqualifications petitions are pending. Rejecting the
submission, this Court held as under:
“8. Shri Kapil Sibal, learned Senior Advocate appearing on behalf
of the Appellant, in the Civil Appeal arising out of SLP(C) No.
F 18659 of 2017, has argued that the Speaker in the present case
has deliberately refused to decide the disqualification petitions
before him…… In these circumstances, he has exhorted us to
issue a writ of quo warranto against Respondent No. 3 stating
that he has usurped a constitutional office, and to declare that he
G cannot do so…
32. It is not possible to accede to Shri Sibal’s submission
that this Court issue a writ of quo warranto quashing the
appointment of the Respondent No. 3 as a minister of a cabinet
25
(2020) 2 SCC 595
26
H (2020) SCC OnLine SC 55
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 915
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

led by a BJP government. Mrs. Madhavi Divan is right in stating A
that a disqualification 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
B
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 C
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
D
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 the proceedings to
apply to this Court for further directions/reliefs in the matter.”
85. The incumbent Speaker of the Maharashtra Legislative
Assembly has been duly elected by the MLAs in terms of the procedure E
laid down under the Maharashtra Assembly Rules 1960. The petitioners
have referred to the decision of the Speaker to cancel the recognition of
Mr. Sunil Prabhu as the Chief Whip of the Shiv Sena on 3 July 2022 to
argue that the Speaker is biased and impartial. The decision of the
Speaker to cancel the recognition of Mr. Prabhu has also been challenged F
in the instant proceedings. Even if this Court sets aside the decision of
the Speaker cancelling the recognition of Mr. Prabhu on merits, it would
not be a sufficient reason for this Court to decide the disqualification
petitions. We are also unable to accept the alternative submission of the
petitioners to direct the Deputy Speaker to adjudicate the question of
disqualification for the simple reason that the Maharashtra Legislative G
Assembly has duly elected the Speaker, who has been entrusted with
the authority to decide disqualification petitions under the Constitution.
The Deputy Speaker can perform the duties of the Speaker only when
the office of the Speaker is vacant.27 As observed in Kihoto Hollohan
27
Article 180 of the Constitution H
916 SUPREME COURT REPORTS [2023] 8 S.C.R.

A (supra) and Shrimanth Balasaheb Patil (supra), the Speaker is expected
to act fairly, independently, and impartially while adjudicating the
disqualification petitions under the Tenth Schedule. Ultimately, the
decision of the Speaker on the question of disqualification is subject to
judicial review. Therefore, this Court is of the opinion that the Speaker
of the Maharashtra Legislative Assembly is the appropriate constitutional
B
authority to decide the question of disqualification under the Tenth
Schedule.
iii. Validity of the proceedings of the House between the prohibitory
conduct and the decision in the disqualification petitions
C 86. In Rajendra Singh Rana (supra), a Constitution Bench of
this Court observed that disqualification is incurred at the point when the
MLA indulges in conduct prohibited under the Tenth Schedule. The
petitioners rely on this observation to contend that the validity of the
proceedings in the House during the pendency of the disqualification
petitions depends on the outcome of the disqualification petitions. The
D petitioners urge that though 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
E 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
F 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
G 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 result of the split, namely the Lok Tantrik Bahujan Dal.
On the very same day, the Speaker accepted the claim of a split and
recognized a separate group by the name Lok Tantrik Bahujan Dal while
H the disqualification petitions were kept pending. Proceedings under Article
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 917
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226 of the Constitution were instituted before the High Court challenging A
the order of the Speaker recognizing the split. The High Court set aside
the order of the Speaker and directed the Speaker to consider the
disqualification petitions instituted against the thirteen MLAs. The appeal
against the order of the High Court was disposed by the Constitution
Bench in Rajendra Singh Rana (supra).
B
88. This Court held that the Speaker could not have decided
whether a split existed de hors the disqualification petitions. The Court
considered the issue of the point in time when the defence of a split must
have existed. The respondents in that case contended that the defence
of a split in terms of Paragraph 3 must have existed on the day on which
the MLAs indulged in prohibitory conduct. In response, the petitioners C
contended that it is sufficient for the MLAs to prove a split in terms of
Paragraph 3 as on the day when the disqualification petitions are decided
by the Speaker. It was in this context that this Court observed that the
MLAs incurred disqualification when they indulged in prohibitory conduct
and therefore, the defence to disqualification (in this case, a split) must D
also have existed when the MLAs indulged in prohibitory conduct. The
relevant observations are extracted below:
“34. As we see it, the act of disqualification occurs on a member
voluntarily giving up his membership of a political party or at the
point of defiance of the whip issued to him. Therefore, the act E
that constitutes disqualification in terms of para 2 of the Tenth
Schedule is the act of giving up or defiance of the whip. The fact
that a decision in that regard may be taken in the case of
voluntary giving up, by the Speaker at a subsequent point
of time cannot and does not postpone the incurring of
disqualification by the act of the legislator. Similarly, the fact F
that the party could condone the defiance of a whip within 15
days or that the Speaker takes the decision only thereafter in
those cases, cannot also pitch the time of disqualification as
anything other than the point at which the whip is defied. Therefore
in the background of the object sought to be achieved by the Fifty- G
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
H
918 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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
C Speaker that the disqualification is incurred, cannot be accepted.
This would mean that what the learned Chief Justice has called
the snowballing effect, will also have to be ignored and the question
will have to be decided with reference to the date on which the
membership of the legislature party is alleged to have been
voluntarily given up.”
D
(emphasis supplied)
89. The observations that are sought to be relied upon by the
petitioners were made in the context of deciding the relevant point of
time at which the defence to disqualification must have existed.
E 90. In Kuldeep Bishnoi (supra), five MLAs from Haryana Janhit
Congress wrote to the Speaker of their intention to merge with the INC
which formed the Government in Haryana. The Speaker accepted the
merger. Disqualification petitions under Paragraph 2(1)(a) of the Tenth
Schedule were instituted. The Speaker incessantly adjourned the
F proceedings and did not decide on the disqualification petitions for more
than seven months. One of the orders of adjournment was challenged
before the High Court. The High Court directed the Speaker to decide
the petitions within four months, stayed the order recognizing the merger,
and declared the five MLAs to be unattached members. The High Court
directed that the five MLAs would neither be treated as a part of the
G INC nor the Haryana Janhit Congress, and they would only have a right
to attend the session. On appeal, a two-Judge Bench of this Court set
aside the direction declaring the five MLAs as unattached members. In
Kuldeep Bishnoi (supra), the issue before this Court was whether the
High Court could have passed an interim order declaring members of
the House as unattached members when disqualification petitions were
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 919
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

pending against them. This Court answered in the negative. It observed A
that the MLAs were entitled to function without any restrictions. This
Court in Kuldeep Bishnoi (supra) did not address the argument of
whether the outcome of the proceedings of the House in the period
intervening the prohibitory act and decision in the disqualification petition,
would be subject to the decision. Thus, the contention that has been
B
raised by the petitioners needs to be considered afresh by this Court.
91. 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 incursa
disqualification under the provisions of Article 191(2) read with Tenth
Schedule, their seat shall thereupon become vacant: C
“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 D
(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 E
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.28
92. Articles 189(2) and 100(2) (the corresponding provisions for
Parliament) stipulate that the validity of any proceedings of the F
legislature shall not be questioned on the ground that it was discovered
subsequently that a legislator who was not entitled to vote or sit, took
part in the proceedings. Article 189(2) is extracted below:
“(2) A House of the Legislature of the State shall have power to
act notwithstanding any vacancy in the membership thereof, and G
any proceedings in the Legislature of a State shall be valid
notwithstanding that it was discovered subsequently that some

28
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. H
920 SUPREME COURT REPORTS [2023] 8 S.C.R.

A person who was not entitled so to do sat or voted or otherwise
took part in the proceedings.”
The provisions of Article 189(2) will have no bearing on the
determination of this issue because members of the House lose their
right to participate in the proceedings of the House only upon their
B disqualification. The decision of the Speaker does not relate back to the
date when the MLA indulged in prohibitory conduct. The decision of the
Speaker and the consequences of disqualification are prospective.
93. Article 189(2) would only apply where it is subsequently
discovered that an MLA was not entitled to have voted. That situation
C does not arise here. Therefore, it was not necessary for the respondents
to take recourse to Article 189(2). The proceedings of the House cannot
be subject to the decision in the disqualification petitions when the
decision is prospective. Moreover, the interpretation advanced by the
petitioners would render the parliamentary system of governance
unworkable. Parliament undertakes innumerable functions on the floor
D 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
E would lead to chaos. For the above reasons, the action of the House in
electing the Speaker, Mr. Rahul Narwekar, on 3 July 2022 is not invalid
merely because some MLAs who participated in the election faced
disqualification proceedings. We accordingly answer the question referred
to us as noted in Paragraphs 32(d) and 32(e) of this judgment.

F iv. The power to appoint the Whip and the Leader of the Legislature
Party
94. The respondents have challenged the communication of the
Deputy Speaker dated 21 June 2022 appointing Mr. Ajay Choudhari as
the Leader of the SSLP. The petitioners have challenged the
G 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
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 921
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

inquire into communications recognizing the Whip and the Leader of a 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 B
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.” C

96. This Court has on earlier occasions construed the scope of
the restriction on judicial review of proceedings of the Legislature under
Article 212 (and the corresponding provision for Parliament, Article 122).
In Special Reference No. 1 of 1964 (Powers, Privileges and
Immunities of State Legislatures),29 a seven-Judge Bench observed D
that Article 212 only restricts judicial review on the ground of ‘irregularity
of procedure’ and that proceedings of the legislature can still be
challenged if the ‘procedure is illegal and unconstitutional.’ In Raja Ram
Pal (supra), a Constitution Bench held that legislative proceedings can
be challenged on the grounds of ‘substantive illegality or E
unconstitutionality’. In Justice KS Puttaswamy v. Union of India
(Aadhar 5J),30 one of the issues before this Court was whether Article
212 precluded judicial review of the Speaker’s authorization of a Money
Bill. Sikri, J. writing for the majority observed that Article 212 only limited
challenges on the ground of ‘irregularity of procedure’ and not ‘substantive
illegality’. One of us (D Y Chandrachud, J.) observed in his dissenting F
opinion that Article 212 does not preclude judicial review of proceedings
of a Legislature if the decision of the Speaker suffers from “illegality or
a violation of constitutional provisions.” In Rojer Mathew v. South
Indian Bank Ltd.,31 this Court observed that a “gross violation of the
constitutional scheme” cannot be considered a procedural irregularity. G
This Court has consistently held that a substantive illegality or a violation
of a constitutional provision is distinct from a mere irregularity of
procedure and is amenable to judicial review.
29
AIR 1965 SC 745
30
(2019) 1 SCC 1
31
(2020) 6 SCC 1 H
922 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 97. Similar provisions barring Courts from interfering on the ground
of irregularity of procedure occur in the Code of Criminal Procedure
1973.32 Section 465 of the CrPC provides that a finding or a sentence
cannot be reversed solely on the ground of irregularity of proceedings
unless, in the opinion of the Court, there has been a failure of justice.33
The concept of irregularity of procedure is also common in service
B
jurisprudence. In the context of regularisation of employment, this Court
has held that while employees who were irregularly appointed can be
regularised, those appointed illegally cannot. In State of UP v. Desh
Raj,34 this Court held that “an appointment which was made throwing all
constitutional obligations and statutory rules to the winds would render
C 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.
D
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
E 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 floor of the House.
F Legislative procedures serve two objectives - first, they enable
deliberation and discussion on the floor of the House to hold the executive
accountable, and such deliberation also produces better constitutional
outcomes; and second, they create a system to place a check on the
exercise of power by the incumbent government. Certain procedural
requirements prescribed by the Constitution safeguard constitutional
G values. This is reflected in Article 368 which prescribes a special majority
to amend certain constitutional provisions, which according to the
members of the Constituent Assembly hold a higher constitutional (and
32
"CrPC”
33
See Pradeep S Wodeyar v. State of Karnataka, 2021 SCC OnLine SC 1140
34
H (2007) 1 SCC 257
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 923
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

democratic) value. Certain other legislative procedures further democratic A
processes and accountability, and prevent the concentration of power in
the hands of the incumbent government. Article 212 cannot be interpreted
as placing all procedural infringements beyond the pale of judicial review.
Such an interpretation would completely disregard the importance of
legislative processes in a constitutional democracy.
B
99. The distinction between irregular procedure and illegal
procedure must be drawn based on the nature of the procedure which
was violated, and the impact of such a violation on democratic ideals.
An infringement of a procedure would be irregular if the purpose of
such procedure is unrelated to democratic ideals and its violation does
not go to the root of democratic processes. C

100. The observations of this Court on the interpretation of Article
212 highlighted above do not make a distinction between irregularity
and illegality solely based on the source of law. The distinction is not
based on whether the procedure is entrenched in the Constitution but
whether it is crucial for the sustenance of democracy. A violation of a D
procedure that fulfils the twin objectives highlighted above and which is
necessary for the sustenance of parliamentary democracy would render
the action illegal. On the other hand, a violation of a procedure that
establishes orderliness may only be irregular.
101. In Ramdas Athawale v. Union of India,35 a member of the E
Lok Sabha challenged the validity of the proceedings in the Lok Sabha
on the ground that the President had not addressed both Houses of
Parliament under Article 87 when the session commenced on 29 January
2004 which was the first session of the year. The Speaker ruled that the
sitting on 29 January 2004 could not be deemed to be the first session of F
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”: G
“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

35
(2010) 4 SCC 1 H
924 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B 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 irregular and that it would not vitiate the
proceedings themselves. The observations in Ramdas Athawale (supra)
must be read in light of our analysis above that procedural infringements
would vitiate the proceedings based on their purpose and the impact of
C their infringement on the democratic functioning of Parliament.
b. The power to appoint the Whip and the Leader of the
legislature party
I. ‘Political party’ and ‘legislature party’ are distinguishable
concepts.
D
102. Paragraph 1(b) of the Tenth Schedule defines “legislature
party” as follows:
“legislature party, in relation to a member of a House belonging to
any political party in accordance with the provisions of paragraph
2 or paragraph 4, means the group consisting of all the members
E
of that House for the time being belonging to that political party in
accordance with the same provisions”
Paragraph 1(c) defines “original political party” as the political
party to which the member belongs for the purposes of Paragraph 2(1).
Paragraph 2 stipulates that a member belonging to ‘any political party’
F shall be disqualified from being a member of the House if they have
voluntarily given up membership of such political party, or if they vote
contrary to the direction issued by the political party to which they belong
or by any person or authority authorised by it. A member who has voted
contrary to the direction of the political party would not incur
G disqualification if such a vote is condoned by the political party or if the
prior permission of the political party is secured:
“2. Disqualification on ground of defection.—(1) Subject to the
provisions of 3 [paragraphs 4 and 5], a member of a House
belonging to any political party shall be disqualified for being a
H member of the House—
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 925
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

(a) if he has voluntarily given up his membership of such political A
party; or
(b) if he votes or abstains from voting in such House contrary to
any direction issued by the political party to which he belongs
or by any person or authority authorised by it in this behalf,
without obtaining, in either case, the prior permission of such political B
party, person or authority and such voting or abstention has not
been condoned by such political party, person or authority within
fifteen days from the date of such voting or abstention.
Explanation.—For the purposes of this sub-paragraph,— (a) an
elected member of a House shall be deemed to belong to the C
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 D
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 E
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 F
deeming fiction. The provision provides that if the “original political party”
merges with another political party and they become members of such
other political party or a new political party, then such other political
party or the new political party shall be deemed to be the political party
of the member for the purposes of Paragraph 2. To illustrate, Ms. Z G
belonging to party A shall not be disqualified for voting against the direction
of party A if party A merges with party B to form party C or if party A is
subsumed by party B. This is because for the purposes of Tenth Schedule,
Party B or Party C shall be deemed to be their original political party.
Paragraph 4(2) stipulates that a merger is deemed to have taken place
H
926 SUPREME COURT REPORTS [2023] 8 S.C.R.

A only if not less than two-third of the members of the legislature party
have agreed to the merger:
“4. […]
(2) For the purposes of sub-paragraph (1) of this paragraph, the
merger of the original political party of a member of a House shall
B be deemed to have taken place if, and only if, not less than two-
thirds of the members of the legislature party concerned have
agreed to such merger.”
Paragraph 3 which was omitted by the Constitution (Ninety-first
Amendment) Act 2003 stipulated that a member would not be disqualified
C for their prohibitory conduct if there is a split in the original political party
and the legislature party.
104. Paragraph 6A of the Symbols Order lays down conditions
for the recognition of a political party as a recognized State party for the
purposes of the Symbols Order. The provision provides that the political
D party must have secured a certain percentage of votes and should have
returned a certain number of candidates to the assembly to be recognized
as a State party:
“6A. Conditions for recognition as a State Party – A political party
shall be eligible for recognition as a State party in a State, if, and
E only if, any of the following conditions is fulfilled:
(i) At the last general election to the Legislative Assembly of the
State, the candidates set up by the party have secured not less
than six percent of the total valid votes polled in the State; and, in
addition, the party has returned at least two members to the
F Legislative Assembly of that State at such general election; or
(ii) At the last general election to the House of the People from
that State, the candidates set up by the party have secured not
less 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
G 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,
H whichever is more; or
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 927
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

(iv) At the last general election to the House of the People from A
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 B
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 intertwined is erroneous for the following reasons: C
a. Parliament in its constituent capacity was conscious of the
necessity of not allowing anti-defection laws to stifle intra-
party dissent and the freedom of expression of legislators.
It was with this objective that the defences of merger, and
split (which was later omitted) were introduced. The Tenth D
Schedule confers legitimacy to the actions of the legislators
which would otherwise lead to disqualification if a
substantial number of legislators (two-third in the case of
a merger,and one-third in the case of the erstwhile provision
for a split) disagree with the political party. The Tenth
Schedule recognizes the independent existence of the E
legislature party to the limited extent of presenting a defence
to the actions of the legislators which would otherwise have
amounted to defection; and
b. Section 29A of the Representation of the People Act 1951
requires an association of individuals calling itself a political F
party to be registered with the ECI. The party need not
have returned candidates to the assembly to be registered
as a political party. Under the Symbols Order, a political
party receives recognition as a State Party or a National
Party based on the total number of candidates returned to G
the assembly by the political party, and/or the total
percentage of votes secured in the election. The purpose
of the requirement under the Symbols Order is to identify
whether the political party has a substantial presence in the
electoral fray to freeze an electoral symbol for that party.
The Symbols Order does not refer to an association of H
928 SUPREME COURT REPORTS [2023] 8 S.C.R.

A legislators de hors the political party like the Tenth Schedule.
It recognises a ‘legislator’ and a ‘political party.’ Thus, the
reference to provisions of the Symbols Order to argue that
the concepts of political party and legislature party are
intertwined does not hold merit because the concept of
legislature party is not recognized by the Symbols Order.
B
II. Literal and purposive interpretation of the provisions of the
Tenth Schedule, the 1986 Rules, and the Act of 1956
106. Rule 2(f) of the 1986 Rules defines ‘leader’ in relation to a
legislature party as a member of the party chosen by it as its leader and
C includes any other member of the party authorised by the party to act in
the absence of the leader. Rule 3(1) states that the leader 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
D 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;
E 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
F
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
G 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 such legislature party together with other particulars
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 929
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

regarding such members as in Form- I, and the names and A
designations of the members of such party who have been
authorised by it for communicating with the Speaker for
purposes of these rules ;
(b) a copy of the rules and regulations (whether known as
such or as Constitution or by any other name) of the political B
party concerned ; and
(c) where such legislature party has any separate set of rules
and regulations (whether known as such or as Constitution or
by any other name), also a copy of such rules and regulations.
[...]” C

107. Rule 3(4) stipulates that the Leader of the legislature party
must furnish the updated information if there has been a change in the
information furnished under Rule 3(1). Rule 3(5) states that if a member D
votes or abstains from voting in the assembly contrary to the direction of
the political party without the prior permission of the political party, the
Leader of the legislature Party may within thirty days of such voting or
abstention communicate to the Speaker as to whether such voting or
abstention has been condoned by the political party. The rule also stipulates
that the Leader must inform the Speaker even if they voted contrary to E
the direction of the political party. The 1986 Rules neither use nor define
the term ‘Whip’.
108. The term ‘Whip’ is defined in the Act of 1956. Section 2 of
the Act of 1956 provides that an MLA shall not be disqualified for holding
the offices stipulated in Schedule I. Clause 23 of Schedule I mentions F
the offices of Chief Whip or Whip in the Maharashtra State Legislature.
The explanation to this clause defines a Whip as follows:
“Explanation.- (1) The expression “Chief Whip” or “Whip”, in
relation to the Maharashtra Legislative Assembly, means that
Member of the House who is, for the time being, declared by the G
party forming the Government to be the Chief Whip or Whip in
that House and recognized as such by the Speaker; 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 number
of the House and recognized as such by the Speaker; and
H
930 SUPREME COURT REPORTS [2023] 8 S.C.R.

A (2) The expression “Chief Whip” or “whip”, in relation to the
Maharashtra Legislative Council, means that member of the House
who is, for the time being, declared 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
B
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
C 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
D 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
E terms that the direction must come from the political party
and not the legislature party. The distinction between political
party and legislature party is made in the definition clause
in Paragraph 1. There are no two ways about it. The Tenth
Schedule would become unworkable if the term ‘political
party’ is read as the ‘legislature party.’ A clear demarcation
F is made between political party and legislature party for the
purpose of a merger under Paragraph 4, which stipulates
that two-thirds of the members of the legislature party
must have agreed to a merger of the original political
party before such a merger can be deemed to have taken
G place. To read the term ‘political party’ as ‘legislature party’
would be contrary to the plain language of the Tenth
Schedule;
b. It is an accepted position that the Whip communicates the
directions of the party to its members. The phrase ‘Whip’
is neither used in the Tenth Schedule nor in the 1986 Rules.
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 931
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

The phrase finds a mention in the Act of 1956 as one of the A
offices that would not be covered within the meaning of
‘office of profit.’ The explanation to Clause 23 of Schedule
I in the Act of 1956 states that the Chief Whip is declared
by the party forming the Government. The reference to
‘party’ in the explanation clause means political party and
not legislature party because the term ‘party’ is used to B
depict political party in common parlance; and
c. The respondents urge that the Whip is chosen by the
legislature party because Rule 3(1)(a) of the 1986 Rules
provides that the Leader shall inform the Speaker of the
names and designations of the members who have been C
authorised by it for communicating with the Speaker for
the purposes of these rules. This argument is erroneous.
The phrase ‘any other member who has been authorised to
communicate with the Speaker’ in Rule 3(1)(a) must be
read with the definition of ‘Leader’ under Rule 2(f), which
includes such other member authorised to act in the absence D
of the Leader or discharge the functions of the Leader for
the purpose of the Rules. When read together, it is evident
that Rule 3(1)(a) refers to the furnishing of information
about members who have been authorised to act as the
Leader in the absence of the Leader themselves. The Whip E
interacts with the members of the legislature party to
communicate the direction(s) of the political party. Rule
3(5) which prescribes 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 F
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 G
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. H
932 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
Paragraphs 2(1)(a) and 2(1)(b). The Speaker dismissed the
B
disqualification petitions. One of the findings of the Speaker was that it
was not proved that the appellant was authorised to issue the direction
on behalf of the political party. The order of the Speaker was challenged
before this Court. It was submitted that ‘political party’ in Paragraph
2(1)(b) must be read as ‘political party in the House’, meaning the
C legislature party. Srinivasan, J. in his separate opinion rejected this
argument and upheld the order of the Speaker by observing that there
was no material to indicate that the appellant was authorised by the BSP
to issue the direction. In this context, Srinivasan, J. held that ‘political
party’ cannot be read as ‘legislature party’ for the following reasons:
D a. The phrase ‘political party’ in Paragraph 2(1)(b) cannot be
interpreted to mean legislative party while the same phrase
in Paragraph 2(1)(a) retains its original meaning;
b. Such an interpretation would render explanation(a) to
Paragraph 2(1) otiose because a legislature party cannot
E set up a person as a candidate for election;
c. Disqualification from membership of the assembly is a
serious consequence. Such a consequence can only ensue
from voting contrary to the direction of the political party;
and
F d. In Kihoto Hollohan (supra), it was held that to balance
the competing considerations of the anti-defection law and
intra-party dissent, a direction to vote (or abstain from
voting) can only be given if the vote would alter the status
of the government formed or if it is on a policy on which
G the political party that set up the candidate went to polls on.
Only the political party and not the legislature party can
issue directions concerning issues of this nature.
111. Hence, the plain meaning of the provisions of the Tenth
Schedule, 1986 Rules, and Act of 1956 indicate that the Whip and the
Leader must be appointed by the political party.
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 933
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

112. The Tenth Schedule was introduced to thwart the growing A
tendency of legislators to shift allegiance to another political party after
being elected on the ticket of a certain political party. The defection of
MLAs would alter the composition of the House, and in most cases
would lead to the toppling of the Government. Moral and democratic
principles are compromised when a legislator shifts allegiance after the
B
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.”36 In Kihoto Hollohan C
(supra), SR Bommai, and Kuldip Nayar v. Union of India37 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
D
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 which connects a
member of the House to the political party. It would mean that legislators
could rely on the political party for the purpose of setting them up for
election, that their campaign would be based on the strengths (and E
weaknesses) of the political party and its promises and policies, that
they could appeal to the voters on the basis of their affiliation with the
party, but that they can later disconnect themselves entirely from that
very party and be able to function as a group of MLAs which no longer
owes even a hint of allegiance to the political party. This is not the system F
of governance that is envisaged by the Constitution. In fact, the Tenth
Schedule guards against precisely this outcome.
114. That a Whip be appointed by the political party is crucial for
the sustenance of the Tenth Schedule. The entire structure of the Tenth
Schedule which is built on political parties would crumble if this G
requirement is not complied with. It would render the provisions of the

36
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
37
(2006) 7 SCC 1 H
934 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Tenth Schedule otiose and have wider ramifications for the democratic
fabric of this country. Thus, the Courts cannot be excluded by Article
212 from inquiring into the validity of the action of the Speaker recognizing
the Whip.
115. On 25 November 2019, a meeting with the newly elected
B MLAs belonging to the Shiv Sena was chaired by Mr. Uddhav Thackeray,
in his capacity as the Shiv Sena Party President (‘Paksh Pramukh’).
The resolution notes that the MLAs unanimously resolved that all decisions
in the meeting would be taken by Mr. Thackeray. A resolution was issued
appointing Mr. Eknath Shinde as the Group Leader of SSLP and Mr.
Sunil Prabhu as the Chief Whip. On 21 June 2022, some members of the
C SSLP held a meeting under the chairmanship of the president of the Shiv
Sena, Mr. Uddhav Thackeray. In the meeting, it was resolved to remove
Mr. Shinde as the Group Leader of the SSLP, and appoint Mr. Ajay
Choudari. The resolution was signed by Mr. Uddhav Thackeray in his
capacity as the party president on the official letterhead of the office of
D the SSLP.
116. It is the case of the respondents that on the same day, that is,
21 June 2022, a separate meeting of the “real” SSLP was held. At this
meeting, thirty-four members of the SSLP issued a resolution (i)
reaffirming that Mr. Shinde who was appointed as the Leader of the
E SSLP on 31 October 2019 continued to be Leader; and (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
F 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
G 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.
H Shinde as the Leader and Mr. Gogawale as the Chief Whip. The Deputy
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 935
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

Secretary of the Maharashtra Legislative Assembly issued a A
communication that the Speaker has recognised a new Whip and a new
Leader of the SSLP:
“With reference to your abovementioned letter, I have been ordered
to inform you that you have been replaced from the post of Leader
of Legislative Party by nominating the name of Shri Ajay B
Choudhari. In this regard, you have raised the objection by
addressing the letter on 22nd June. In this regard, after deliberation
on provision in the law, Hon’ble Speaker, Maharashtra Legislative
Assembly has cancelled the approval granted to Shri Ajay
Choudhari as leader, ShivSena Legislature Party and approves &
recognizes the nomination of Shri Eknath Shinde as Leader, C
ShivSena Legislative Party as per the letter dated 31 October
2019. Similarly, the proposal to nominate Shri Sunil Prabhu as
Chief Whip of ShivSena Legislative Party is to be cancelled and
to recognize the nomination of Shri Bharat Gogavale as Chief
Whip of ShivSena Legislature Party has been approved and D
recorded in the registry.”
118. It is important to note that the above communication (i)
recognizes that the faction led by Mr. Shinde objected to the
communication of the Deputy Speaker replacing Mr. Shinde as the Leader
by a resolution dated 22 June 2022; and (ii) appreciates the objection of E
the faction led by Mr. Shinde to the appointment of Mr. Choudhari to the
role of Leader. We will proceed on the assumption that the objection by
the faction led by Mr. Shinde was received by the Speaker on 22 June
2022 since the communication of the Speaker notes this date.
119. The Speaker was aware of the emergence of two factions in F
the legislature party on 3 July 2022 when he appointed a new Whip and
a new Leader because the resolution of the respondents specifically
mentions that a “split” had occurred due to prevailing dissatisfaction in
some MLAs of the Shiv Sena. Further, the fact that there were two
resolutions appointing two different Whips and two different Leaders
would no doubt have resulted in the Speaker inferring that there were G
two factions of the Shiv Sena. The Speaker on taking cognizance of the
resolution passed by the faction of SSLP led by Mr. Shinde, did not
attempt to identify which of the two persons who were nominated (Mr.
Prabhu or Mr. Gogawale) were authorised by the political party. In a
contentious situation such as this, the Speaker should have conducted an H
936 SUPREME COURT REPORTS [2023] 8 S.C.R.

A independent inquiry based on the rules and regulations of 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
B
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 asits leader. The term ‘party’ is
ambiguous. It is not preceded by either ‘political’ or ‘legislature’. It may
C 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.’
D 121. Under Paragraph 8(1)(b) of the Tenth Schedule and Rule
3(5) of the 1986 Rules, the Leader of the legislature party is required to
inform the Speaker if the political party condoned the prohibitory act
under Paragraph 2(1)(b) of the Tenth Schedule. Thus, the Leader of the
legislature party is the link between the political party and the legislative
E assembly. If the interpretation of the respondents is accepted, the action
of the leader condoning an MLA’s prohibitory conduct would not reflect
the voice of the political party and would instead reflect the voice of the
legislature party. This would be contrary to the manner in which the
Tenth Schedule is intended to operate. The manner in which the Tenth
Schedule would then operate would not effectively prevent or provide a
F solution to the constitutional sin of defection.
122. On 21 June 2022, there was no material on record before the
Deputy Speaker for him to doubt that the resolution of SSLP dated 21
June 2022 (appointing Mr. Ajay Choudhari as the Leader of the SSLP)
was de hors the political party, or that two factions of the party had
G emerged. The resolution was signed by Mr. Thackeray in his capacity
as the party president much like the resolution appointing the Whip and
Leader in 2019. This makes it evident that Mr. Thackeray issued the
communication on behalf of the political party. Thus, the decision of the
Deputy Speaker recognising Mr. Ajay Choudhari as the Whip in place
H of Mr. Eknath Shinde is valid.
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 937
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

123. However, the resolution passed by SSLP on 22 June 2022 A
brought to the attention of the Speaker that it was passed by a faction of
the SSLP. Thus, the Speaker by recognising the action of a faction of
the SSLP without determining whether they represented the will of the
political party acted contrary to the provisions of the Tenth Schedule, the
1986 Rules, and the Act of 1956. The decision of the Speaker recognising
Mr. Shinde as the Leader is illegal. B

124. The Speaker must recognize the Whip and the Leader who
are duly authorised by the political party with reference to the provisions
of the party constitution, after conducting an enquiry in this regard and in
keeping with the principles discussed in this judgement.
C
v. Deciding who the “real” Shiv Sena is
125. Time and again, the parties before this Court asserted that
they were the “real” Shiv Sena. In cases such as the present one, the
answer to this question will have implications in the disqualification
proceedings under the Tenth Schedule as well as proceedings for the
allotment of a symbol under the Symbols Order. D
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 E
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 F
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 G
disincentivize and penalize the constitutional sin of defection.38 A violation
of the anti-defection law results in a member of the House being:
a. Disqualified from the House;39
38
Kihoto Hollohan (surpa); Nabam Rebia (supra)
39
Paragraph 2, Tenth Schedule, Constitution of India 1950 H
938 SUPREME COURT REPORTS [2023] 8 S.C.R.

A b. Disqualified from holding any remunerative political post
for the duration of the period commencing from the date of
their disqualification till the date on which the term of their
office as a member of the House would expire or till the
date on which they contest election to a House and are
declared elected, whichever is earlier;40 and
B
c. Disqualified from being appointed as a Minister for the
duration of the period commencing from the date of their
disqualification till the date on which the term of their office
as a member of the House would expire or till the date on
which they contest election to a House and are declared
C elected, whichever is earlier.41
129. These consequences ensure that a member of the House is
unable to reap the fruits of defection within the House. Significantly, the
Tenth Schedule does not have a bearing on the status of a disqualified
member of a House vis-à-vis their political party. In other words, if a
D member incurs disqualification under the Tenth Schedule, it does not
automatically result in their expulsion from the political party to which
they belong. It is up to the political party and its internal processes to
determine whether to expel a member.
b. The purpose of the Symbols Order and the effect of the
E decision under Paragraph 15
130. The ECI issued the Symbols Order in 1968 in exercise of the
powers conferred by Article 324 of the Constitution read with Section
29A of the Representation of the People Act 1951 and Rules 5 and 10 of
the Conduct of Elections Rules 1961. The Symbols Order governs the
F reservation and allotment of symbols to candidates for the purpose of
elections. The preamble to the Symbols Order states that it is:
“An Order to provide for specification, reservation, choice and
allotment of symbols at elections in Parliamentary and Assembly
Constituencies, for the recognition of political parties in relation
G thereto and for matters connected therewith.”
131. Political parties are classified into recognised political parties
and unrecognised political parties under the Symbols Order.42 Recognised
40
Article 361-B, Constitution of India 1950
41
Article 75(1-B) and Article 164(1-B), Constitution of India 1950
H 42
Paragraph 6(1), Symbols Order
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 939
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

political parties are further classified into National Parties and State A
Parties.43 The ECI recognizes political parties as National Parties or
State Parties if they satisfy the requirements prescribed in the Symbols
Order.44
132. The ECI allots a symbol to every candidate who contests
elections, in accordance with the Symbols Order.45 Some symbols are B
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.”46 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 C
recognised political parties must contest elections by using the symbol
that is reserved for their party, and no other symbol.47 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,48 may choose
and will be allotted a free symbol.49 Reserved symbols are not allotted D
to candidates who are not set up by the political party for which that
symbol has been reserved.50
133. From this, it is evident that the purpose of the Symbols Order
is:
a. To provide a uniform procedure for the recognition of E
political parties; and
b. To provide a uniform and just system for the allotment of
symbols for candidates to contest in elections.
134. The raison d’être for the Symbols Order is the fact that
F
political parties (and ‘independent’ candidates) rely on the symbol allotted
to them while campaigning to the electorate. To a significant extent, the
electorate too, associates the symbol allotted to a party with the party
itself and with the candidates set up for election by that party. The
43
Paragraph 6(2), Symbols Order
44
Paragraphs 6A, 6B, 6C, Symbols Order
G
45
Paragraph 4, Symbols Order
46
Paragraph 5, Symbols Order
47
Paragraph 8, Symbols Order
48
Paragraphs 10, 10A, 10B, Symbols Order
49
Paragraph 12, Symbols Order
50
Paragraph 8(3), Symbols Order H
940 SUPREME COURT REPORTS [2023] 8 S.C.R.

A association between the party, the candidates set up for election by that
party, and the symbol is strengthened with the passage of time. This
association becomes significant in the polling booth when voters press
the button on the Electronic Voting Machine to register their vote for a
particular candidate because the symbol is depicted on or next to the
button. The association is doubly significant for voters who have not had
B
the opportunity to attain literacy and who rely solely on symbols to cast
their vote. In this way, symbols are crucial to the contest of elections. It
is therefore not surprising that when rival factions of a political party
emerge, both or all such factions vie for the symbol allotted to that party.
135. The ECI is empowered to adjudicate disputes between rival
C sections or groups of a recognised political party, each of whom claims
to be that party, under Paragraph 15 of the Symbols Order. When such
a dispute arises, the ECI will decide if one of the rival sections or groups
is that recognised political party. In the alternative, it may decide that
none of the rival groups is that recognised political party. The decision of
D the ECI is to be based on a consideration of all the available facts and
circumstances as well as the representations advanced by the rival groups
and other persons who desire to be heard. Paragraph 15 is reproduced
below:
“15. Power of Commission in relation to splinter groups or rival
E sections of a recognised political party –
When the Commission 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
F 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
G 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.51 The
H 51
V S Rama Devi and S K Mendiratta, How India Votes (3rd edition, 2014), at 621
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 941
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

ECI departed from this practice in 1997. The ECI has since held that the A
faction that is not recognised as the political party in the proceedings
under Paragraph 15 cannot be automatically recognised as a State or
National Party because its members were not elected on the ticket of
the newly formed political party but on the ticket of the political party
from which their faction emerged.52 The unsuccessful group must now
B
apply for the registration of its political party under Section 29A of the
Representation of the People Act 1951. The ECI will allot a symbol to
the political party when it is recognised as a State or National Party
under the Symbols Order.
137. The essence of the decision of the ECI cannot be understood
as solely a determination as to who is entitled to the symbol for the C
purposes of election. While that is the outcome of the decision under
Paragraph 15, the substance of the decision is the determination as to
which of the groups is the lifeblood of the recognised political party. 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 that political D
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.
138. In this regard, in Sadiq Ali (supra), this Court held that:
“35. …The allotment of a symbol to the candidates set up by a
political party is a legal right and in case of split, the Commission E
has been authorised to determine which of the rival groups or
sections is the party which was entitled to the symbol. The
Commission in resolving this dispute does not decide as
to which group represents the party but which group is that
party. If it were a question of representation, even a small F
group according to the Constitution of the organisation may
be entitled to represent the party. Where, however, the
question arises as to which of the rival groups is the party, the
question assumes a different complexion and the numerical strength
of each group becomes an important and relevant factor. It cannot
be gainsaid that in deciding which group is the party, the G
Commission has to decide as to which group substantially
constitutes the party.”
(emphasis supplied)
52
V S Rama Devi and S K Mendiratta, How India Votes (3rd edition, 2014), at 621-622 H
942 SUPREME COURT REPORTS [2023] 8 S.C.R.

A c. The test(s) applicable to disputes under Paragraph 15 of
the Symbols Order
139. Paragraph 15 stipulates that the ECI must take 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
B 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.
C
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:
D
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
E constitution; and
c. A test evaluating which of the two rival groups enjoyed a
majority in the legislature (i.e., the Houses of Parliament as
well as the Legislative Assemblies of States) and in the
organisational wing of the party.
F 141. The ECI declined to apply the first test detailed above because
each group had expelled members from the other group. It was of the
opinion that the second test was not suited to the facts of that case
because neither Congress O nor Congress J had “openly repudiated”
the aims and objects of the constitution of the party. The ECI held that
the third test was most appropriate to the facts of that case. Accordingly,
G
it assessed which of the two groups constituted a majority in Parliament
and in the State Legislatures, and in the organisational wing of the party.
It found that Congress J enjoyed a majority in both the organizational
wing and the legislative wing, and that it was entitled to utilise the symbol
which had been reserved for the INC.
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 943
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

142. On appeal, this Court upheld the decision of the ECI and A
ruled that the ‘test of majority’ was a very valuable test in the facts and
circumstances of the case:
“26. … As Congress is a democratic organisation, the test of
majority and numerical strength, in our opinion, was a very valuable
and relevant test. Whatever might be the position in another system B
of government or organisation, numbers have a relevance and
importance in a democratic system of government or political set-
up and it is neither possible nor permissible to lose sight of them.
Indeed it is the view of the majority which in the final analysis
proves decisive in a democratic set-up.
C
27. It may be mentioned that according to Paragraph 6 of the
Symbols Order, one of the factors which may be taken into account
in treating a political party as a recognised political party is the
number of seats secured by that party in the House of People or
State Legislative Assembly or the number of votes polled by the
contesting candidates set up by such party. If the number of seats D
secured by a political party or the number of votes cast in favour
of the candidates of a political party can be a relevant
consideration for the recognition of a political party, one is at a
loss to understand how the number of seats[...] to be irrelevant
31. … All that this Court is concerned with is whether the test of E
majority or numerical strength which has been taken into account
by the Commission is in the 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.” F

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 15.53
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 G
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.
53
V S Rama Devi and S K Mendiratta, How India Votes (3 rd edition, 2014), at 619 H
944 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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 under the Tenth Schedule. On 19
July 2022, Mr. Shinde filed a petition before the ECI under Paragraph 15
B of the Symbols Order, claiming that the faction led by him constituted
the “real” Shiv Sena and that it should therefore be allotted the symbol
of the Shiv Sena (the ‘bow and arrow’).
145. When the Tenth Schedule and the Symbols Order are invoked
concurrently, complications may arise, including in cases such as the
C present one. If the ECI applies the ‘test of majority,’ it will be required to
consider (among other things) which of the two factions enjoys a majority
in the Maharashtra State Legislature. Therefore, which faction has a
majority in the House will have some bearing on the outcome of the
proceedings before the ECI. Whether or not a particular faction has a
majority in the legislature will depend on whether members from that
D faction have incurred disqualification. For example, we may illustratively
consider a case where Party X has a hundred seats in the Legislative
Assembly of a state. Two factions, Group A and Group B, emerge. The
former consists of sixty MLAs and the latter consists of the remaining
forty. Members of each group file disqualification petitions against
E members of the other group. The ECI is called upon to decide which
group is Party X under Paragraph 15 of the Symbols Order. In terms of
the law as it currently stands, there are two possible outcomes:
a. The ECI renders its decision prior to the Speaker. It observes
that Group A enjoys a majority in the legislature. This has a
F significant bearing on its decision although it is not the only
factor which is considered. Group A is adjudicated to be
Party X and is awarded the symbol; or
b. The Speaker renders their decision prior to the ECI. They
disqualify some or all the members of Group A for violating
G the anti-defection law. While adjudicating the petition under
Paragraph 15 of the Symbols Order, the ECI (after taking
into account the disqualification incurred by some or all of
Group A) notes that Group A does not enjoy a majority in
the legislature. Once again, this has a significant bearing on
its decision although it is not the only factor which is
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 945
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

considered. Group B is adjudicated to be Party X and is A
awarded the symbol.
146. The outcome of the dispute before the ECI may change
depending on the outcome of the disqualification petitions. It is precisely
this complication which the petitioners seek to guard against. The
petitioners urge that when proceedings under Paragraph 15 of the B
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.” C

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) D
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
E
148. This Court cannot accept the solution proposed by the
petitioners and lay down a constitutional sequence. To hold that the ECI
is barred from adjudicating petitions under Paragraph 15 of the Symbols
Order until the “final adjudication” of the disqualification petitions under
the Tenth Schedule would be, in effect, to indefinitely stay the proceedings
before the ECI. This is because an order of the Speaker attains finality F
only after all avenues for appeal have been exhausted or are barred by
the passage of time. The time that it would take for an order of the
Speaker to attain finality is uncertain. The ECI is a constitutionally
entrenched institution which is entrusted with the function of
superintendence of and control over the electoral process. The ECI, G
which is a constitutional authority, cannot be prevented from performing
its constitutional duties for an indefinite period of time. Proceedings before
one constitutional authority cannot be halted in anticipation of the decision
of another constitutional authority.

H
946 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 149. This Court must also be alive to the possibility of the death of
a political party in the intervening period, or further complications that
may arise if elections are announced during the period when proceedings
before the ECI are stayed, if a stay were to be granted. When a dispute
under Paragraph 15 of the Symbols Order is pending adjudication, it is
standard practice for the ECI to freeze the symbol reserved for that
B
political party and allot interim symbols to the rival groups. If the reserved
symbol is frozen for an inordinately long period of time and the interim
symbols must be resorted to for every by-election and election, it may
well end the association between the reserved symbol and the political
party in the minds of the electorate. This will no doubt be a blow to the
C political party which is lawfully entitled to the symbol reserved for its
use. Therefore, the ECI must render a decision as to which group
constitutes that political party.
150. In arriving at this decision, it is not necessary for the ECI to
rely on the test of majority in the legislature alone. In cases such as the
D present one, it would be futile to assess which group enjoys a majority in
the legislature. Rather, the ECI must look to other tests in order to reach
a conclusion under Paragraph 15 of the Symbols Order. The other tests
may include an evaluation of the majority in the organisational wings of
the political party, an analysis of the provisions of the party constitution,
or any other appropriate test.
E
151. When this Court decided the petition in Sadiq Ali (supra),
the Tenth Schedule did not form a part of the Constitution. There was 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
F 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
G 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 court a democratic organisation,
H and numbers matter in such organisations; and second, the total number
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 947
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

of seats secured by the political party in the legislative assembly is a A
relevant factor for the recognition of a political party as a State or a
National Party. When legislators are disqualified under the Tenth
Schedule, the basis of recognition of the political party under the Symbols
Order and correspondingly, one of the reasons for using the test of
legislative majority itself becomes diluted. Thus, it is not appropriate to
B
confine the ECI to the singular test of legislative majority in such
situations.
152. In Sadiq Ali (supra), this Court noted that one of the tests
considered by the ECI was an assessment of which of the two rival
groups adhered to the aims and objects of the party as incorporated in its
constitution. This Court did not have occasion to express its opinion on C
the validity of this test because it found that the test of majority was
relevant to the facts in Sadiq Ali (supra). Since we have left it open to
the ECI to apply a test other than that which evaluates which of the
groups constitute a majority, it becomes necessary to consider whether
the alternatives are viable. D
153. An evaluation of whether rival groups are adhering to the
aims and objects of the party as incorporated in its constitution, and
which of the rival groups is more in consonance with such aims and
objects, is an entirely subjective exercise. Different groups may adopt
different paths or methods to achieve the same object. It would not be E
appropriate for the ECI to accord its stamp of approval to the routes or
methods chosen by one group over those chosen by another group. This
would amount to entering the political arena. For example, one of the
aims detailed in the constitution of a party could be that it will work
towards attaining economic justice. Two rival sections of this party may
emerge. The first group may happen to advocate for direct benefit F
transfers whereas the second group may be of the belief that subsidising
the cost of certain products is a preferable alternative. The exercise of
the ECI in determining which of these methods (and by extension, which
of the rival groups) is more suited to attaining economic justice is
subjective. Although this is a simplified example, it is illustrative of the G
manner in which the same goal can be sought to be 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.
H
948 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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.
B
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
C 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 cannot
be stayed in anticipation of the decision of the ECI. In cases where a
D petition under Paragraph 15 of the Symbols Order is filed after the
(alleged) commission of prohibitory conduct, the decision of the ECI
cannot be relied upon by the Speaker for adjudicating disqualification
proceedings. If the disqualification petitions are adjudicated based on
the decision of the ECI in such cases, the decision of the ECI would
E have retrospective effect. This would be contrary to law.
157. When the conduct prohibited under the Tenth Schedule is
(allegedly) committed, there is only one political party. As discussed in
the preceding segments of this judgement, this necessitates the Speaker
prima facie determining who the political party was at the time of the
act which is alleged attract the provisions of the Tenth Schedule. The
F decision of the Speaker that a member of the House is disqualified for
voluntarily giving up the membership of the political party would only
disqualify them from the House. It would not lead to an automatic
expulsion of the member from the political party. It follows that the
submission of the petitioners that a legislator who has incurred
G disqualification under Paragraph 2 of the Tenth Schedule has no locus to
institute a petition under Paragraph 15 of the Symbols Order, cannot be
accepted. We accordingly answer the question referred to us as noted
in Paragraph 32(j) of this judgment.
158. In the proceedings instituted by Mr. Shinde under Paragraph
H 15 of the Symbols Order, the ECI awarded the symbol “bow and arrow”
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 949
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

reserved for the Shiv Sena to the faction led by him. The petitioners A
challenged this order before this Court.54 By an order dated 22 February
2023, this Court issued notice. We have not expressed any opinion on
the merits of that case.
vi. The impact of the deletion of Paragraph 3 of the Tenth Schedule
159. The Tenth Schedule to the Constitution was inserted by the B
Constitution (Fifty-second Amendment) Act 1985. The Tenth Schedule
sought to provide a remedy to the ‘constitutional sin’ of defection. Simply
put, defection is the act of members of either House of the state
legislature or of either House of Parliament shifting allegiances by exiting
the political party on whose ticket they went to the polls and joining C
another political party. The years prior to the insertion of the Tenth
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.
D
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 E
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 F
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 member may take recourse to, to shield themselves
from the consequences of the anti-defection law:
G
a. A member will not be disqualified under Paragraph 2(1)(b)
if they have obtained the prior permission of their political
party to vote or abstain from voting contrary to the directions
issued by such political party;55
54
SLP(C) No. 3997 of 2023
55
Paragraph 2(1)(b) of the Tenth Schedule to the Constitution H
950 SUPREME COURT REPORTS [2023] 8 S.C.R.

A b. A member is protected from being disqualified under
Paragraph 2(1)(b) if the political party to which they belong
has condoned their actions in voting or abstaining from voting
contrary to the directions issued by such political party, within
fifteen days from such voting or abstention;56
B c. In terms of Paragraph 4, a member will not be disqualified
either under Paragraph 2(1)(a) or under Paragraph 2(1)(b)
where their original political party merges with another
political party and they claim that they and any other
members of their original political party have become
members of such other political party or of a new political
C party formed by the merger.57 This defence is made out
only if not less than two-thirds of the members of the
legislature party concerned have agreed to the merger;58
d. In cases where the original political party of a member is
found to have merged with another political party under
D Paragraph 4(1)(a), members of the original political party
are protected from being disqualified if they have not
accepted such merger and have opted to function as a
separate group;59 and
e. Members who have been elected to the office of the
E Speaker or the Deputy Speaker (or the Chairman or the
Deputy Chairman as the case may be) in Parliament or in
the Legislative Assemblies of States are exempted from
disqualification under the Tenth Schedule if they voluntarily
give up the membership of their political party by reason of
F their election to such office and do not re-join the political
party or become a member of another political party so
long as they continue to hold such office. Further, they are
not disqualified if they re-join the political party which they
gave up membership of, after ceasing to hold office.60

G 162. Prior to 2003, a sixth defence under Paragraph 3 was available
to members against whom disqualification petitions were filed. Paragraph
56
Paragraph 2(1)(b) of the Tenth Schedule to the Constitution
57
Paragraph 4(1)(a) of the Tenth Schedule to the Constitution
58
Paragraph 4(2) of the Tenth Schedule to the Constitution
59
Paragraph 4(1)(b) of the Tenth Schedule to the Constitution
H 60
Paragraph 5 of the Tenth Schedule to the Constitution
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 951
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

3 stipulated that a member of the House would not be subject to A
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 B
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 C
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 any person or D
authority authorised by it in that behalf without obtaining the prior
permission of such party, person or authority and such voting or
abstention has not been condoned by such party, person or authority
within fifteen days from the date of such voting or abstention; and
(b) from the time of such split, such faction shall be deemed to be
E
the political party to which he belongs for the purposes of sub-
paragraph (1) of paragraph 2 and to be his original political party
for the purposes of this paragraph.”
a. The defence of a ‘split’ is no longer available to members
who face disqualification proceedings
F
163. The question before this Court is – what is the impact of the
deletion of Paragraph 3 of the Tenth Schedule? This question has arisen
in the context of both factions of the Shiv Sena claiming to be the “real”
Shiv Sena. In effect, this points to the existence of a split within the
SSLP. However, no faction or group can argue that they constitute the
original political party as a defence against disqualification on the ground G
of defection.
164. The inevitable consequence of the deletion of Paragraph 3
from the Tenth Schedule is that the defence of a split is no longer available
to members who face disqualification proceedings. In cases where a
split has occurred in a political party or in a legislature party, members of H
952 SUPREME COURT REPORTS [2023] 8 S.C.R.

A neither faction may validly raise the defence that they are the political
party in the event that each faction files petitions for the disqualification
of members of the other faction. The defence sought to be availed of
must be found within the Tenth Schedule as it currently stands.
165. Members of multiple groups or factions can all continue as
B members of the House if the requirements of Paragraph 4(1) of the
Tenth Schedule are satisfied. Two (or more) factions of a political party
can both remain in the House if one of the factions has opted to merge
with another political party in terms of Paragraph 4(1)(a) and the other
faction has chosen not to accept the merger. However, in cases where
a split has occurred, and members of one of the factions are found to
C have satisfied the conditions in Paragraph 2(1) and are also unable to
establish any of the five defences detailed above, they would stand
disqualified. The percentage of members in each faction is irrelevant to
the determination of whether a defence to disqualification is made out.
166. This is necessarily the implication of the deletion of Paragraph
D 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.61The interpretation which we have expounded is the only one
E 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
F 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 determine which (if any) of the members of the party
have voluntarily given up membership of the political party under
G Paragraph 2(1)(a), it is necessary to first determine which of the factions
constitute the political party. This determination is a prima facie
determination and will not impact any other proceedings including the
proceedings under Paragraph 15 of the Symbols Order.
61
Delhi Admn. v. Gurdip Singh Uban, (2000) 7 SCC 296; Taxi Owners United Transport
H v. State Transport Authority (Orissa), (1983) 4 SCC 34
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 953
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

168. In arriving at their decision, the Speaker must consider the A
constitution of the party as well as any other rules and regulations which
specify the structure of the leadership of the party. If the rival groups
submit two or more versions of the party constitution, the Speaker must
consider the version which was submitted to the ECI before the rival
factions emerged. In other words, the Speaker must consider the version
B
of the party constitution which was submitted to the ECI with the consent
of both factions. This will obviate a situation where both factions attempt
to amend the constitution to serve their own ends. Further, the Speaker
must not base their decision as to which group constitutes the political
party on a blind appreciation of which group possesses a majority in the
Legislative Assembly. This is not a game of numbers, but of something C
more. The structure of leadership outside the Legislative Assembly is a
consideration which is relevant to the determination of this issue.
169. The deletion of Paragraph 3 impacts the proceedings under
Paragraph 2(1)(b) as well. When there are two Whips appointed by two
or more factions of the political party, the Speaker, as held in the preceding D
section of the judgement, decides which of the two Whips represents
the political party. Thus, the adjudication of the Speaker on whether a
member must be disqualified under Paragraph 2(1)(b) would also depend
on the decision of the Speaker recognising one of the two (or more)
Whips. We accordingly answer the question referred to us as noted in
Paragraph 32(f) of this judgment. E

vii. The exercise of discretion by the Governor in directing Mr.
Thackeray to face a floor test
170. The facts relevant to the determination of this issue have
been narrated in the introductory part of this judgement. To recount, F
thirty-four MLAs of the Shiv Sena met and passed a resolution on 21
June 2022. The resolution reaffirmed that Mr. Eknath Shinde “continues
to be” the Group Leader of the SSLP, cancelled the appointment of Mr.
Sunil Prabhu as the Chief Whip, and appointed Mr. Bharat Gogawale in
his place. The signatories also expressed their discontent and
dissatisfaction with the Shiv Sena for forming the Government in alliance G
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 H
954 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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.
C 171. The letter sent by the Governor to the then-Chief Minister
indicates that he relied on the following circumstances in arriving at the
conclusion that a floor test was required:
a. A letter received from the then Leader of Opposition stating
that Mr. Thackeray no longer enjoyed the confidence of
D the House;
b. Letters received from seven independent MLAs requesting
the Governor to direct Mr. Thackeray to prove his majority
on the floor of the House;

E c. The resolution dated 21 June 2022 signed by thirty-four
members of the SSLP stating that they were dissatisfied
with the Shiv Sena for forming an alliance with the INC
and the NCP;
d. A letter dated 21 June 2022 addressed by Mr. Shinde to the
F Deputy Speaker stating that the appointment of Mr. Ajay
Choudhari as the Leader of the SSLP was illegal; and
e. A letter dated 25 June 2022 received from thirty-eight
members of the SSLP stating that the security provided to
them by the State Government had been withdrawn illegally
and that their lives were in danger.
G
172. Based on these materials, the Governor (in the letter dated
28 June 2022) concluded that Mr. Thackeray had lost the confidence of
the House:
“… a majority of the Shiv Sena MLAs have given a clear indication
H on behalf of the Shiv Sena Legislature Party that they intend to
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 955
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

exit from the Maha Vikas Aghadi Government and that you have A
been made aware of the same and that you are trying to win over
your MLAs and cadre by means which are not democratic. I am
therefore confident that you and your Government has lost the
trust of the House and the Government is in minority.”
The Governor then called upon Mr. Thackeray to prove his majority B
on the floor of the House on 30 June 2022.
173. The Governor constitutes an integral part of a State
Legislature. The executive power of the State is vested in the Governor.
Article 163 requires the Governor to exercise their legislative and
executive power on the aid and advice of the Council of Ministers. Article C
163(2) empowers the Governor to exercise their discretionary powers
when required by or under the Constitution. Article 174(1) provides that
the Governor shall from time to time summon the House to meet at such
time and place as they think fit. Article 175(1) empowers the Governor
to address the House. Article 175(2) permits the Governor to send
messages to the House whether with respect to a pending Bill or D
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 E
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. F
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 G
proclamation, dismissed the State Government, and dissolved the
Assembly.
175. This Court held that the Governor cannot decide whether
the Council of Ministers has lost the confidence of the House and this
has to be determined on the floor of the House. This Court approvingly
H
956 SUPREME COURT REPORTS [2023] 8 S.C.R.

A referred to the Report of the five-member Committee of Governors
which recommended that when a Governor is satisfied “by whatever
process or means” that the Government no longer enjoys the support of
the majority, they should ask the Chief Minister to prove their majority
on the floor of the Assembly. B P Jeevan Reddy, J held that loss of
confidence by a Government is an objective fact which has to be
B
ascertained only on the floor of the House:
“391. [...] The Constitution does not create an obligation that the
political party forming the ministry should necessarily have a
majority in the Legislature. Minority Governments are not
unknown. What is necessary is that that Government should enjoy
C the confidence of the House. This aspect does not appear to have
been kept in mind by the Governor. Secondly and more importantly,
whether the Council of Ministers has lost the confidence of the
House is not a matter to be determined by the Governor or for
that matter anywhere else except the floor of the House. The
D principle of democracy underlying our Constitution necessarily
means that any such question should be decided on the floor of
the House. The House is the place where the democracy is in
action. It is not for the Governor to determine the said question on
his own or on his own verification. This is not a matter within his
subjective satisfaction. It is an objective fact capable of being
E established on the floor of the House. [...]”
176. In Shivraj Singh Chouhan (supra), the government in the
State of Madhya Pradesh was formed by the INC. During the term of
the Assembly, MLAs of the BJP submitted resignation letters of twenty-
two MLAs from the INC to the Speaker. The Speaker accepted six of
F the twenty-two resignations. The party in the opposition in the Assembly
wrote a letter to the Governor adverting to these resignations. The
Governor directed a trust vote to be carried out. The action of the
Governor was assailed before this Court. This Court held that the
constitutional scheme vested the Governor with the power and discretion
G to call for a trust vote in a “running Assembly” and that such a decision
is subject to judicial review. This Court ruled that the decision to call for
a floor test should be 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
H governments:
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 957
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

“71. The powers which are entrusted to constitutional functionaries A
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
B
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 C
by the Governor is not based on extraneous considerations.”
177. This Court also observed that unless there are “exigent and
compelling circumstances”, the Governor should not prevent the ordinary
legislative process of a no-confidence motion from running its due course.
In Shivraj Singh Chouhan (supra), the Speaker accepted the D
resignations of only six members who were Ministers of the incumbent
Government, and adjourned the Assembly for thirteen days. It was in
view of these facts that this Court held there was objective material and
relevant reasons for the Governor to call for a floor test.
178. The power of the Governor to summon the House under E
Article 174 must be exercised on the aid and advice of the Council of
Ministers. Rule 95 of the Maharashtra Legislative Assembly Rules
stipulates that a member who wishes to move a motion of no-confidence
in the Council of Ministers shall do so by a notice in writing. If the
motion is admitted by the Speaker and the Assembly is in session, leave
to move the motion must be granted not later than two days from the F
date of the notice. However, if the notice is received when the Assembly
is not in session, leave to move the motion shall be granted within two
days from the commencement of the session.
179. To avert a no-confidence motion, the incumbent Government
may not advise the Governor to convene a session of the Assembly, and G
the Speaker may adjourn the sitting of the House to prevent voting for
granting leave to move a motion of no-confidence. If the Speaker and
the Government attempt to circumvent a no-confidence motion, the
Governor would be justified in exercising the power under Article 174
without the aid and advice of the Council of Ministers. H
958 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 180. The Constitution and the system of governance that it provides
is based on representative democracy. This means that each citizen has
an active and participatory role in how the governments at various levels
function. The elected representatives of the people act on their behalf
by enacting laws and overseeing the implementation of policies. This is
our chosen path to achieve democracy. Direct and indirect elections and
B
the candidates who are elected are indispensable to our model of
representative democracy. Hence, the Constitution empowers the elected
representatives to act on behalf of the people. Consequently, the Governor
who despite their constitutional status is unelected, is vested with limited
discretionary powers.
C 181. The power of the Governor to act without the aid and advice
of the Council of Ministers is of an extraordinary nature. The exercise
of such powerhas 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
D 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.
E 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
F 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 dated
G 21 June 2022 because: (i) the thirty-four MLAs belonging to Shiv Sena
did not express their intention to exit the MVA government; and (ii) the
MLAs who signed the resolution constituted a faction of the SSLP.
184. Although the resolution dated 21 June 2022 specifies that
some MLAs of the SSLP were dissatisfied with the functioning of the
MVA government, it does not record their intention to withdraw support
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 959
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

from the Government. Among the thirty-four MLAs who signed the A
resolution dated 28 June 2022, a few were also Ministers in the
Government. On the basis of this resolution, the Governor concluded
that “a majority of the Shiv Sena MLAs have given a clear indication …
that they intend to exit from the Maha Vikas Aghadi Government.”
185. The assembly was not in session when Mr. Fadnavis and B
seven independent MLAs wrote to the Governor. However, there was
no attempt made by the members of the opposition parties to issue a
notice for a no-confidence motion against the incumbent government.
186. The Governor had no objective material on the basis of which
he could doubt the confidence of the incumbent government. The C
resolution on which the Governor relied did not contain any indication
that the MLAs wished to exit from the MVA government. The
communication expressing discontent on the part of some MLAs is not
sufficient for the Governor to call for a floor test. The Governor ought to
apply his mind to the communication (or any other material) before him
to assess whether the Government seemed to have lost the confidence D
of the House. We use the term ‘opinion’ to mean satisfaction based on
objective criteria as to whether he possessed relevant material, and not
to mean the subjective satisfaction of the Governor. Once a government
is democratically elected in accordance with law, there is a presumption
that it enjoys the confidence of the House. There must exist some E
objective material to dislodge this presumption.
187. The MLAs did not express their desire to withdraw support
from the MVA Government in the resolution dated 21 June 2022. Even
if it is assumed that the MLAs implied that they intended to exit from the
Government, they only constituted a faction of the SSLP and were at F
most, indicating their dissatisfaction with the course of action adopted
by their political party.
188. The political imbroglio in Maharashtra arose as a 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 G
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. H
960 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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 disputes or in intra-party disputes. It follows from
this that the Governor cannot act upon an inference that he has drawn
C that a section of the Shiv Sena wished to withdraw their support to the
Government on the floor of the House.
190. It is true that the letter dated 25 June 2022 sent by some
MLAs of the Shiv Sena to the Governor requesting him to issue directions
to the appropriate authorities for the restoration of their security details
D mentions that those MLAs “no longer wanted to be a part of the corrupt
MVA government.” However, this cannot be taken to mean that they
had withdrawn their support on the floor of the House. Nothing in any
of the communications relied upon by the Governor indicates that the
dissatisfied MLAs from the Shiv Sena intended to withdraw their support
to the Chief Minister and the Council of Ministers. At the highest, the
E various communications expressed the fact that a faction of MLAs
disagreed with some policy decisions of the party. The course of action
they wished to adopt in order to air their grievances and redress them
was, at the time the floor test was directed to be conducted, uncertain.
Whether they would choose to enter deliberations with their colleagues
F in the House or in the political party, or mobilise the cadres, or resign
from the Assembly in protest, or opt to merge with another party, was
uncertain. Therefore, the Governor erred in relying upon the resolution
signed by a faction of the SSLP MLAs to conclude that Mr. Thackeray
had lost the support of the majority of the House.
G 191. Second, the Governor relied on the letter dated 25 June 2022
from thirty-eight SSLP members claiming that the security provided to
them and to their families was illegally withdrawn. The MLAs claimed
that the security was withdrawn to coerce them into continuing to support
the MVA government “against their free will.” Therefore, they demanded
restoration of the security provided to them and to their family members.
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 961
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After receiving the letter, the Governor issued directions to the state A
police to provide adequate protection to the MLAs, the members of
their families, and their property. However, the lack of security to MLAs
has no bearing on the question of whether the Government enjoys the
confidence of the House. The appropriate response of the Governor in
such cases is to ensure that the security that they are lawfully entitled to
B
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 C
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 D
for it, or where the Constitution cannot be construed otherwise than to
grant such discretion.62 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.
E
193. Finally, the Governor relied on the letters written by Mr.
Fadnavis and seven ‘independent’ MLAs, calling upon him to direct Mr.
Thackeray to prove his majority on the floor of the House. First, both
Mr. Fadnavis as well as the seven MLAs could have well moved a
motion of no-confidence. Nothing prevented them from doing so. Second,
a request by some MLAs for a direction to the Chief Minister to prove F
his majority does not, taken alone, amount to a relevant and germane
reason to call for a floor test. There must be some objective material in
addition to a mere request to call for a floor test. In the present case, the
Governor did not have any objective material before him to indicate that
the incumbent government had lost the confidence of the House and G
that he should call for a floor test. Hence, the exercise of discretion by
the Governor in this case was not in accordance with law.
194. Relying on Bommai (supra) and Nabam Rebia (supra), the
petitioners argue that this Court has the power to restore the status quo
62
Nabam Rebia (supra) H
962 SUPREME COURT REPORTS [2023] 8 S.C.R.

A ante and rule that the Government with Mr. Thackeray as its Chief
Minister is to be reinstated. However, this argument does not account
for the fact that Mr. Thackeray did not face the floor test on 30 June
2022 and instead submitted his resignation. This Court cannot quash a
resignation that has been submitted voluntarily. Had Mr. Thackeray
refrained from resigning from the post of the Chief Minister, this Court
B
could have considered the grant of the remedy of reinstating the
government headed by him. The order of this Court dated 29 June 2022
held that the outcome of the trust vote to be conducted on 30 June 2022
“shall be subject to the final outcome” of this batch of petitions. Since
the trust vote was not held, the question of it being subject to the final
C outcome of these petitions does not arise.
195. The petitioners urge that the pendency of disqualification
petitions before the Speaker or the Deputy Speaker ought to have resulted
in the postponement of the floor test. This argument cannot be accepted.
As discussed in the previous section of this judgement, the pendency of
D disqualification petitions does not bar an MLA from participating in the
proceedings of the House. This includes the right of an MLA to participate
in the floor test. It is true that adjudication of disqualification petitions
would alter the numbers in the Assembly, and ultimately bear on the
outcome of a floor test. The option of initiating a no-confidence motion
after the adjudication of disqualification petitions is open to the MLAs.
E 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.
F 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
G 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
H
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 963
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

197. Article 164(1B) of the Constitution is reproduced below: A
“ 164. Other provisions as to Ministers.
…
(1B) A member of the Legislative Assembly of a State or either
House of the Legislature of a State having Legislative Council B
belonging to any political party who is disqualified for being a
member of that House under paragraph 2 of the Tenth
Schedule shall also be disqualified to be appointed as a
Minister under clause (1) for duration of the period commencing
from the date of his disqualification till the date on which the term
of his office as such member would expire or where he contests C
any election to the Legislative Assembly of a State or either House
of the Legislature of a State having Legislative Council, as the
case may be, before the expiry of such period, till the date on
which he is declared elected, whichever is earlier.”
(emphasis supplied) D
198. Article 164(1B) bars an MLA or a Member of the Legislative
Council of a State (where one exists) from being appointed as a Minister
if they have been disqualified under Paragraph 2 of the Tenth Schedule.
The bar begins to operate only upon the member of the legislature
incurring disqualification. Article 164(1B) does not interdict the E
appointment of a member to the post of a Minister if a petition for their
disqualification under Paragraph 2 of the Tenth Schedule is pending
adjudication before the Speaker. This is evident from the language of
Article 164(1B), which states that a member who is disqualified under
Paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed F
as a Minister.
199. In other words, the mere institution of a disqualification petition
does not trigger some or all of the consequences which flow from the
disqualification itself. To hold otherwise would be to blur or efface the
distinction between the institution of a disqualification petition against a
G
member of the House and the disqualification of that member. A claim
that something is true does not mean that it is actually true. A claim must
be established according to the procedure established by law before it
can be considered to be a fact. When a petition for disqualification under
the Tenth Schedule is filed before the Speaker, the party who filed the
petition asserts that the respondent in the petition has contravened the H
964 SUPREME COURT REPORTS [2023] 8 S.C.R.

A provisions of the Tenth Schedule. This averment must be tested on the
anvil of evidence before the Speaker, who acts as a Tribunal under the
Tenth Schedule. Article 164(1B) is therefore triggered only when the
Speaker 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
B
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
C 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
D 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
E shortly after the disqualification petitions were filed against them. The
case had a chequered history. The Speaker ultimately passed an order
inter alia disqualifying these MLAs.
202. Aggrieved by the order of the Speaker, the disqualified MLAs
approached this Court under Article 32 of the Constitution. The MLAs
F who had tendered their resignations argued that the Speaker did not
have the jurisdiction to adjudicate the petitions for their disqualification
because they had already resigned and were therefore not members of
the House who could be disqualified. Relying on Rajendra Singh Rana
(supra), this Court rejected this submission and held that the Speaker
has the jurisdiction to determine the disqualification petitions because
G disqualification relates to the date when the act constituting defection is
alleged to have been committed:
“93. As such, there is no doubt that the disqualification relates to
the date when such act of defection takes place. The tendering of
resignation does not have a bearing on the jurisdiction of the
H Speaker in this regard. At this point we may allude to the case of
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 965
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

D. Sanjeevayya v. Election Tribunal [D. Sanjeevayya v. Election A
Tribunal, AIR 1967 SC 1211] , wherein this Court has held that :
(AIR pp. 1213-14, para 5)
“5. It is, therefore, not permissible, in the present case, to interpret
Section 150 of the Act in isolation without reference to Part III of
the Act which prescribes the machinery for calling in question the B
election of a returned candidate. When an election petition has
been referred to a Tribunal by the Election Commission and the
former is seized of the matter, the petition has to be disposed of
according to law. The Tribunal has to adjudge at the conclusion of
the proceeding whether the returned candidate has or has not
committed any corrupt practice at the election and secondly, it C
has to decide whether the second respondent should or should not
be declared to have been duly elected. A returned candidate cannot
get rid of an election petition filed against him by resigning his
seat in the legislature, whatever the reason for his resignation
may be.” D
Therefore, the aforesaid principle may be adopted accordingly,
wherein the taint of disqualification does not vaporise, on
resignation, provided the defection has happened prior to the date
of resignation.”
(emphasis supplied) E
203. 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 F
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
G
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. H
966 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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 recognize the legitimacy
B of one faction over another. The ECI is the appropriate
authority to determine which of the two factions constitute
the Shiv Sena.
205. The BJP returned one hundred and six candidates to the
Maharashtra Legislative Assembly, the highest amongst all political
C parties. It formed the primary opposition party in the House. By a letter
dated 30 June 2022, the then Leader of Opposition, Mr. Fadnavis, wrote
to the Governor claiming that one hundred and six MLAs of the BJP
extend their support to Mr. Eknath Shinde for the formation of a
government headed by Mr. Shinde. Eight independent candidates also
extended their support to a government helmed by Mr. Shinde. On the
D same day, Mr. Shinde wrote to the Governor seeking to be called to
form the Government. Based on the material before him, that is, the
communications received, the Governor invited Mr. Shinde to take the
oath of office, and directed him to prove his majority on the floor of the
House within a period of seven days. The post of the Chief Minister of
E the State of Maharashtra fell vacant after the resignation of Mr.
Thackeray on 29 June 2022. The leader of the party that had returned
the highest number of candidates to the State Assembly extended support
on behalf of the party to Mr. Shinde. Thus, the decision of the Governor
dated 30 June 2022 inviting Mr. Shinde to form the Government was
justified.
F
F. Conclusions
206. In view of the discussion above, the following are our
conclusions:
a. The correctness of the decision in Nabam Rebia (supra)
G is referred to a larger Bench of seven judges;
b. This Court cannot ordinarily adjudicate petitions for
disqualification under the Tenth Schedule in the first
instance. There are no extraordinary circumstances in the
instant case that warrant the exercise of jurisdiction by this
H Court to adjudicate disqualification petitions. The Speaker
SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 967
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

must decide disqualification petitions within a reasonable A
period; .
c. An MLA has the right to participate in the proceedings of
the House regardless of the pendency of any petitions for
their disqualification. The validity of the proceedings of the
House in the interregnum is not “subject to” the outcome B
of the disqualification petitions;
d. The political party and not the legislature party appoints the
Whip and the Leader of the party in the House. Further,
the direction to vote in a particular manner or to abstain
from voting is issued by the political party and not the C
legislature party. The decision of the Speaker as
communicated by the Deputy Secretary to the Maharashtra
Legislative Assembly dated 3 July 2022 is contrary to law.
The Speaker shall recognize the Whip and the Leader who
are duly authorised by the Shiv Sena political party with
reference to the provisions of the party constitution, after D
conducting an enquiry in this regard and in keeping with the
principles discussed in this judgement;
e. The Speaker and the ECI are empowered to concurrently
adjudicate on the petitions before them under the Tenth
Schedule and under Paragraph 15 of the Symbols Order E
respectively;
f. While adjudicating petitions under Paragraph 15 of the
Symbols Order, the ECI may apply a test that is best suited
to the facts and circumstances of the case before it;
F
g. The effect of the deletion of Paragraph 3 of the Tenth
Schedule is that the defence of ‘split’ is no longer available
to members facing disqualification proceedings. The
Speaker would prima facie determine who the political party
is for the purpose of adjudicating disqualification petitions
under Paragraph 2(1) of the Tenth Schedule, where two or G
more factions claim to be that political party;
h. The 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 the conclusion that Mr. Thackeray H
968 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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; and
i. The Governor was justified in inviting Mr. Shinde to form
the government.
B 207. This batch of Writ Petitions is disposed of in terms of the
conclusions and directions recorded above.
208. Pending applications, if any, stand disposed of.

C Bibhuti Bhushan Bose Writ petitions disposed of.
(Assisted by : Spoorthi Cotha and Rahul Rathi, LCRAs)

D

E

F

G

H