CASE COMMENT ON SUBHASH DESAI V.  PRINCIPAL SECRETARY, GOVERNOR OF MAHARASHTRA & [1] ORS.

This article is written by Leevanshiqa, Faculty of law, Kalinga University, 3^rd Year BA.LL.B (Hons) Student during an internship at LeDroit India.

PROLOGUE:

ShivSena was innovated in the time 1966. By the time 2018, it’s honored by Election Commission of India (ECI) as a state political party wherein Mr. Uddhav Thakre was tagged as the party chairman. The period during 2019 – 2022 witnessed that ShivSena confederated with BJP to form a government wherein Mr. Thakre was sworn in as the chief minister of Maharashtra. Mr. Eknath Shinde was the group leader of ShivSena Legislative party and Mr. Sunil Prabhu hold the charge as principal scourge.

The month of June envisaged that after developing some altercations, the party was fractured into two major fractions wherein one body was led by Mr. Thakre and another by Mr. Shinde.

With crooked views of both these leaders, a many judgments were passed relating to the movables of members. Both of them claimed that the appointment made by the rival body was illegal and invalid and these judgments were not stuck to applicable vittles. This discord redounded into the form of the disqualification desires under the 10th Schedule of Constitution of India.

Schedule 10 contains vittles related to the disqualification of members of houses (both Parliament and state houses) on the grounds of dereliction. It aims to help lawmakers from switching parties without consequences. Anyone who had been disqualified under the 10th Schedule came automatically disqualified from being appointed a minister, both at the central and state position. The change was brought about by the insertion of Clause (1- B) in Composition 75 and Clause 1 (B) in Composition 164 of the Indian Constitution.

The dubitation that Mr. Thakre lacks maturity support was brought to the table by Mr. Fadnavis, the also opposition leader, through a letter to the governor. Grounded on this communication, the governor asked Mr. Thakre to face the bottom test on 30th June. But before this test could held, on 29June, Mr. Thakre abnegated from his post.

Chancing that the office of the chief minister is vacant since  also, Mr. Fadanvis informed the governor that 106 MLAs of BJP and 8 other independent MLAs extend their support to Mr. Shinde. The governor asked Mr. Shinde to constitute government and to take pledge as the CM. The governor on June 30th onwards administered the pledge to Mr. Shinde as the Chief Minister.

Latterly in a weak, on 4th July, the governor asked Mr. Shinde to prove his maturity in the assembly. The speaker’s choices were held and thereby BJP’s Mr. Rahul Narwekar surfaced to be victorious and was appointed as the sanctioned speaker of the assembly. He reaffirmed Mr. Shinde as group leader of assembly and Mr. Bharat Gogavale as principal scourge of the party. 

Shinde proved his maturity and from the same day, he was declared as sanctioned principal minister of the Maharashtra. latterly, on 17th July, he filed a solicitation before the Election Commission of India under paragraph 15 of Election Symbols (Reservation and Allotment) Order, 1968 wherein he asked the Election Commission to grant the Party symbol of the ShivSena legislative party i.e. the arc and arrow to the body led by him and accordingly on 17th October 2022 the ECI made an order and granted the Party symbol to Mr. Shinde and body. 

These data forms a pedestal behind form of certain desires before the Apex Court of the country. 

The first solicitation that was filed by Mr. Shinde wherein he’d challenged the notices wherein the rival group had disqualified the MLAs of Shinde body.

Accordingly Mr. Uddhav thakre also approached the Honorable Supreme Court of India and filed certain reiterations wherein he’d challenged the decision of the governor in calling Mr. Thakre to face a bottom test; secondly he’d also challenged the appointment of Mr. Shinde as the chief minister of Maharashtra and thirdly he’d also challenged the appointment of Mr. Narwerkar and thereby these desires that came to be listed before the indigenous bench.

FACTUAL MATRIX:

1. As we read before, in Maharashtra’s intricate political shade, the Shiv Sena emerges as a significant player, tracing its origins back to 1966. Mr. Uddhav Thakre’s ascent to Party President in January 2018 marked a defining moment, setting the stage for coming developments. On November 28th, 2019, Mr. Uddhav Thackeray, leader of the Shiv Sena and head of the Maha Vikas Aghadi( MVA) assumed office as the Chief Minister of Maharashtra.

• On June 21st, 2022, Mr. Shinde, leader of the Shiv Sena in the Legislative Assembly, along with several other Shiv Sena MLAs, faded, professing ideological disgruntlement with the MVA alliance and lack of confidence in CM Thackeray. The Thackeray body initiated disqualification proceedings against the differing members that incited Mr. Shinde to seek legal advisable by moving the Apex Court.

• The Court, through a holiday Bench comprising judges Surya Kant and J.B. Pardiwala granted time extension to the differing body to return back to the disqualification notice issued.

• Simultaneously, the Thakre block issued a notice discarding the Deputy Speaker followed by pullout of support from MVA. The Governor, also, called for a bottom test to ascertain the government’s legislative support. The Supreme Court declined the Thakre block’s plea to injunct the bottom test that leads to CM Thakre’s abdication. The case was latterly appertained to a 5- Judge Constitution Bench on August 22nd, 2022.

• Farther complexity increased when the ECI assigned the name Shiv Sena and its symbol to Shinde bloc on February 17th, 2023. Arguments followed regarding the implicit disqualification of the Shinde bloc for dereliction, with proceedings ongoing as of February 21st, 2023. Ultimately, on May 11, 2023, the awaited judgment regarding this internal strife was delivered, marking a significant chapter in the political diapason.

ISSUES RAISED

1. Whether the notice of junking of the speaker restricts him from continuing the disqualification proceedings under 10th Schedule of the Indian Constitution?
2. What’s the dimension of governor’s power while inviting a member of legislative assembly to face the bottom test in order to prove the maturity and conformation of the government?

CONTENTIONS FROM BOTH THE PARTIES:

Petitioners Arguments

1. First of all, the petitioner raised the contention that whether the speaker of the assembly is  confined from adjudging on the disqualification  desires under the 10th schedule if a notice for his  junking has been issued as held by the Hon’ble Supreme court  indigenous bench in Nabum Rabia’s case in 2016. They contended that the Rabia judgment must and ought to be appertained to a larger bench because the supplicant said that this judgment is in contradiction to the law laid down Kihoto Hollohan in 1992.

2. The pleaders claimed that the interpretation of the Rabia judgment can be misused by the disqualifying MLAs as they would have the power to disable the speaker from deciding the disqualification desires.

3. The pleaders submitted that Rabia judgement is in contradiction to the clear accreditation and intent of papers 179 & 181 of the Indian constitution.

4. Also, pleaders contended that the speaker of the assembly is appointed by the disqualifying MLAs and thereby he’s  prejudiced and partial and  thus the courts must  bring its  governance under Composition 32 or Composition 226 of the Indian constitution.

Respondent’s Argument

1. The repliers stated that this matter need not be appertained to a larger bench since the Rabia judgment is grounded on moral and ethical considerations.

2. The repliers stated that the Hollohan’ judgment only lays down an exception and it does n’t lay down in general rule and thereby the law in Rabia judgment is valid and justified and it should be followed as a precedent.

3. The repliers claimed that the term political party and the legislative party are analogous to each other and they’re both analogous generalities and they can be used interchangeably.

RATIONALE

1. The court analysed the intent of council beneath incorporating Composition 179 and power of the speaker Under 10th Schedule of the Indian Constitution and observed that the Nabam Rabia judgment does n’t apply to the factual Matrix of the present case.
2. The court strictly observed the station taken by the three- judge bench when this matter was listed before and placed reliance upon the  cessions made by parties. The court appertained the Rabia judgement to the larger bench constituting of seven judges as substantial question of law about interpretation of  indigenous  vittles has been arisen. 
3. The court observed that as per paragraph 6 of the 10 schedule read with the 1986 rules, the speaker of the assembly has the exclusive governance to decide the disqualification desires and as per the Kihoto Holohan judgment, the speaker is a bench under the tenth schedule of the Indian constitution. Thus, the opinions given by the speaker can be subject to judicial review under papers 136, 226 or 227 of the Indian constitution. The courts must refrain from hindrance at the first station and can only give an opinion or an observation on the disqualification desires after the decision of the speaker has been rendered.
4. The court observed that the power of the speaker is specified under paragraph six of the 10th schedule which incorporates exclusive governance upon the speaker to decide the disqualification desires.
5. As the court finds no extraordinary circumstances in the present case, the governance of the High Court or the Supreme Court need not be invoked as to decide the disqualification desires. The speaker of the Maharashtra legislative assembly is the only competent Authority to decide the disqualification desires under the tenth schedule and his/ her decision shall be final.
6. The court observed that under Composition 191 sub clause 2 (1- B) and 3 – any member who has been disqualified under the 10 schedule of the Indian constitution for dereliction shall no longer hold the office of the member of the assembly and shall be disqualified from  similar post and their seat shall  therefore lay vacant. The court interpreted these  vittles and laid down that any member against whom disqualification  desires are lying shall not be disqualified until the speaker gives his final decision and they shall have the right to  share in the proceedings. Being the member of the assembly, they shall hold the office until they’ve been expressly disqualified or barred by the speaker. Then, the appointment of Mr. Rahul Narwekar cannot be declared to be invalid because disqualification proceedings are lying before the speaker and nothing has been proven as of the date.
7. The court placed reliance over the judgment of Shivraj Chauhan versus Union of India in which the Hon’ble bench laid down that the decision of the governor in asking a member to face a bottom test must be grounded on objective accoutrements and reasons. The governor has a limited power and discretion in similar matter and he should give a decision grounded on the applicable circumstances. The court, in present case, observed that there were no extraordinary circumstances. Therefore the  bottom test called upon by the governor while exceeding his power was invalid and unjustified. 
8. Upon petitioner’s contention relating to Mr. Thakre’s reinstatement, the bench remarked that as Mr Thakre did n’t face the bottom test and freely abnegated from his position, now the court cannot restore his position.
9. Likewise, about the appointment of Mr. Shinde as the chief minister, the court said that the bar of Composition 164 (1B) applies only in the cases wherein the speaker has given expressed decision of disqualifying a member. Then, the disqualification desires are pending before the speaker. Also, according to the information handed by the also leader of opposition, Mr. Fadanvis, he enjoys the support of 106 MLAs and other 8 independent MLAs. Therefore, the appointment of Mr. Shinde as the CM of Maharashtra was valid and justified in law.

INFERENCE:

An amicable judgment addressing colorful issues related to the split in the Shiv Sena was passed by the Hon’ble Supreme Court in which remarkable compliances were put forth. The matter revolved around part of the also Governor and the speaker of the legislative assembly.  The court significantly interpreted the anti-defection laws and uphold the part of the speaker and his authority to insure legislative independence.

Also, the court emphasized the necessity of applicable material reasons to call upon the bottom test. It adamantly stressed that governor’s discretion should not be applied to destabilize or displace legitimately tagged administrations. The court, still, abstain from snooping with the proceedings related to disqualifying 16 MLAs, including Chief Minister Eknath Shinde..