SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF MAHARASHTRA & ORS.

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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.

57Copy pinpoint57. 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.”

58Copy pinpoint58. 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.

59Copy pinpoint59. Having considered the submissions advanced by counsel for all the parties, we are of the view that the ruling in Nabam Rebia (supra) does not apply to the factual scenario of the present case.

60Copy pinpoint60. In terms of Article 180 of the Constitution, the Deputy Speaker performs the duties of the Speaker while the office of the Speaker is vacant. The functions of the Speaker include the adjudication of disqualification petitions. In the present case, the office of the Speaker of the Maharashtra Legislative Assembly was vacant and the Deputy Speaker Mr. Narhari Zirwal was discharging the functions of the Speaker. A notice of intention to move a resolution for his removal under Article 179 is stated to have been issued on 22 June 2022. Mr. Sunil Prabhu F filed disqualification petitions against some of the MLAs led by Mr. Shinde on 23 June 2022.

61Copy pinpoint61. 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

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undersigned about the authenticity of any such notice, such 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 not being taken on record. Any such notice will only be taken on record after I am satisfied of its genuineness and authenticity.”

62Copy pinpoint62. 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 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.”

63Copy pinpoint63. 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

64Copy pinpoint64. 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

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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.”

65Copy pinpoint65. 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.

66Copy pinpoint66. 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 against whom disqualification petitions were filed, to file their written submissions, in view of the principles of natural justice.

67Copy pinpoint67. 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 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.

68Copy pinpoint68. The reason why the Deputy Speaker did not proceed with the 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

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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 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.

69Copy pinpoint69. Although the decision in Nabam Rebia (supra) is not applicable 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 on “contradictory reasoning.” The order of reference notes: “4. We may prima facie observe that the proposition of law laid down by the Constitution bench in Nabam Rebia (supra), stands on contradictory reasoning, which requires gap filling to uphold the constitutional morality. As such, this question needs a reference to a Constitution bench for the requisite gap filling exercise to be conducted.”

70Copy pinpoint70. Based on the submissions which have been canvassed before us, we are of the view that the decision in Nabam Rebia (supra) merits reference to a larger Bench because a substantial question of law remains to be settled. The following are our prima facie reasons for reaching this conclusion: a. Nabam Rebia (supra) is in conflict with the judgement in Kihoto Hollohan (supra) because the decision in Kihoto Hollohan (supra) holds that there is no reason to doubt the independence and impartiality of the Speaker when adjudicating on proceedings under the Tenth 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

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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 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 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

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Assembly after the dissolution. This Court did not consider if the Constitution envisages a restriction on the continuous performance of the functions of the Speaker under the Tenth Schedule in view of this provision; e. Rule 11 of the Maharashtra Legislative Assembly Rules stipulates that upon the expiry of the period of fourteen days provided under the proviso to Article 178, leave is granted to move the motion only when twenty-nine members vote in favour of it. This Court did not consider the possibility that a notice of intention to move a resolution for the removal of the Speaker may not culminate in such a motion being moved. The Speaker may be effectively barred from adjudicating disqualification petitions based on the mere issuance of a notice of intention to move a resolution by one member of the House; f. It appears that the following aspects were not considered in Nabam Rebia (supra): 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

71Copy pinpoint71. 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.

72Copy pinpoint72. 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

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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 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 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

73Copy pinpoint73. 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

74Copy pinpoint74. 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

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to in Paragraph 6 including the procedure for any inquiry which may be made for the purpose of deciding such question. In exercise of the powers conferred under Paragraph 8, the Speaker of the Maharashtra Legislative Assembly notified the 1986 Rules.

75Copy pinpoint75. Rule 6 of the 1986 Rules lays down the procedure for the filing of disqualification petitions against a member of the House before the Speaker. Rule 7 provides that the Speaker may either 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 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.

76Copy pinpoint76. 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.

77Copy pinpoint77. 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

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78Copy pinpoint78. 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.

79Copy pinpoint79. 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 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 the opinion that remanding the disqualification proceedings to the Speaker would lead to them becoming infructuous.

80Copy pinpoint80. 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 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”

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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.

81Copy pinpoint81. 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

82Copy pinpoint82. In a parliamentary democracy, the Speaker is an officer of the Assembly. The Speaker performs the function of presiding over the proceedings of the House and representing the House for all intents and purposes. In Kihoto Hollohan (supra), it was contended that the Speaker does not represent an independent adjudicatory machinery since they are elected by the majority of the Assembly. Rejecting the argument, this Court emphasized that the office of the Speaker is held in high respect in parliamentary tradition. The Court held that the Speaker embodies propriety and impartiality and that it was therefore inappropriate to express distrust in the office of the Speaker: “118. It would, indeed, be unfair to the high traditions of that great office to say that the investiture in it of this jurisdiction would be vitiated for violation of a basic feature of democracy. It is inappropriate to express distrust in the high office of the Speaker, merely because some of the Speakers are alleged, or even found, to have discharged their functions not in H

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A keeping with the great traditions of that high office. The robes of the Speaker do change and elevate the man inside.” (emphasis supplied)

83Copy pinpoint83. 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 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 that a Speaker is expected to follow while adjudicating questions of disqualification.

84Copy pinpoint84. 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 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

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led by a BJP government. Mrs. Madhavi Divan is right in stating 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 decided by this Court in these appeals given the inaction of the Speaker. It cannot be said that the facts in the present case are similar to the facts in Rajinder Singh Rana (supra). In the present case, the life of the legislative assembly comes to an end only in March, 2022 unlike in Rajinder Singh Rana (supra) where, but for this Court deciding the disqualification petition in effect, no relief could have been given to the petitioner in that case as the life of the legislative assembly was about to come to an end. The only relief that can be given in these appeals is that the Speaker of the Manipur Legislative Assembly be directed to decide the disqualification petitions pending before him within a period of four weeks from the date on which this judgment is intimated to him. In case no decision is forthcoming even after a period of four weeks, it will be open to any party to the proceedings to apply to this Court for further directions/reliefs in the matter.”

85Copy pinpoint85. The incumbent Speaker of the Maharashtra Legislative Assembly has been duly elected by the MLAs in terms of the procedure 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 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

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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

86Copy pinpoint86. 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.

87Copy pinpoint87. 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 the disqualification petitions were kept pending. Proceedings under Article

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226 of the Constitution were instituted before the High Court challenging 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

88Copy pinpoint88. 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 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 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 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 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

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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)

89Copy pinpoint89. 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.

90Copy pinpoint90. 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

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pending against them. This Court answered in the negative. It observed 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 raised by the petitioners needs to be considered afresh by this Court.

91Copy pinpoint91. 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 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

92Copy pinpoint92. Articles 189(2) and 100(2) (the corresponding provisions for Parliament) stipulate that the validity of any proceedings of the legislature shall not be questioned on the ground that it 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 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

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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 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.

93Copy pinpoint93. Article 189(2) would only apply where it is subsequently discovered that an MLA was not entitled to have voted. That situation 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 of the House, including passing legislations and approving the annual budget. These actions of the legislators are irrevocable except in accordance with law. The constitutional sanctity of the proceedings in Parliament or the state legislatures cannot be set in a state of uncertainty. To allow the validity of such proceedings to be subject to a future decision would lead to chaos. 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

94Copy pinpoint94. 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

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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

95Copy pinpoint95. 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

96Copy pinpoint96. 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 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 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 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

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97Copy pinpoint97. 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 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 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

98Copy pinpoint98. 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

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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

99Copy pinpoint99. 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

100Copy pinpoint100. 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.

101Copy pinpoint101. 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

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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 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 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

102Copy pinpoint102. 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—

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(a) if he has voluntarily given up his membership of such political 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 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 political party, if any, by which he was set up as a candidate for election as such member;” (emphasis supplied)

103Copy pinpoint103. The petitioners contend that the Whip and the Leader must be appointed by the political party because Paragraph 2(1)(b) requires that the direction to vote in a particular manner in the House must be from the political party or a person authorised by it, meaning the political party. The respondents submit that the distinction between political party and legislature party is artificial and that they are intertwined concepts. For this purpose, reference was made to Paragraph 4(2) of the Tenth 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 merges with party to form party 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

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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 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 for their prohibitory conduct if there is a split in the original political party and the legislature party.

104Copy pinpoint104. 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 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 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

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(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.”

105Copy pinpoint105. ‘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 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 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 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

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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

106Copy pinpoint106. 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 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 the legislature party with the particulars of the members as specified in Form I, and the names and designations of the members who have been authorised by it for communicating with the Speaker for the purposes of these rules; b. A copy of the rules and regulations of the political party; and c. A copy of the rules and regulations of the legislature party, if it has separate rules. Rule 3(1) is extracted below: “3. Information to be furnished by leader of a legislature party.— (1) The leader of each legislature party (other than a legislature party consisting of only one member) shall within thirty days from the date of commencement of these rules or, where such legislature party is formed after such date within thirty days from the date of its formation, or, in either case, within such further period as the Speaker may for sufficient cause allow, furnish the following to the Speaker, namely :— (a) a statement (in writing) containing the names of members of such legislature party together with other particulars H

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regarding such members as in Form- I, and the names and 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 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

107Copy pinpoint107. 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 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 the direction of the political party. The 1986 Rules neither use nor define the term ‘Whip’.

108Copy pinpoint108. 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 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 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

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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 party having at-least ten percent of the total members of the House and recognized as such by the Chairman.”

109Copy pinpoint109. On a literal interpretation of the provisions of the Tenth Schedule, the 1986 Rules and the Act of 1956, the direction to vote or abstain from voting arises from the political party and not the legislature party for the following reasons: a. Paragraph 2(1)(b) of the Tenth Schedule provides that the direction to vote or abstain from voting must be issued by the political party or by “any person or authority authorised by it,” with the word ‘it’ referring to the political party. The 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 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 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 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

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The phrase finds a mention in the Act of 1956 as one of the 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 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 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 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 with the Speaker for the purposes of the 1986 Rules. This is all the more evident since Rule 3(5) requires the Leader to inform the Speaker in a situation where the Leader votes or abstains from voting contrary to the direction of the political party. Under the 1986 Rules, the Whip is not the designated authority to file disqualification petitions. Rule 6 provides that a petition for disqualification can be filed by any member of the Maharashtra Legislative Assembly. The argument of the respondents that the legislature party appoints the Whip fails, so far as it is based on the provisions of the 1986 Rules discussed in this paragraph. H

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110Copy pinpoint110. 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 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 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.

111Copy pinpoint111. 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

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112Copy pinpoint112. The Tenth Schedule was introduced to thwart the growing 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 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 appoint a Whip vests with the political party.

113Copy pinpoint113. 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 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 of governance that is envisaged by the Constitution. In fact, the Tenth Schedule guards against precisely this outcome.

114Copy pinpoint114. 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 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

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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.

115Copy pinpoint115. 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.

116Copy pinpoint116. 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.

117Copy pinpoint117. 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

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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 recorded in the registry.”

118Copy pinpoint118. 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 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.

119Copy pinpoint119. The Speaker was aware of the emergence of two factions in 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 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

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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.

120Copy pinpoint120. 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.’

121Copy pinpoint121. 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.

122Copy pinpoint122. 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 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 of Mr. Eknath Shinde is valid.

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123Copy pinpoint123. 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

124Copy pinpoint124. 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

125Copy pinpoint125. 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

126Copy pinpoint126. 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.

127Copy pinpoint127. Since we have referred the issues arising from the issuance of a notice of intention to move a resolution for the removal of the Speaker under Article 179(c) to a larger Bench, it only remains for us to consider the manner in which the remaining two proceedings ought to be harmonized. a. The purpose of the Tenth Schedule and the effect of disqualification

128Copy pinpoint128. As discussed extensively in this judgement as well as in other judgements of this Court, the purpose of the Tenth Schedule is to disincentivize and penalize the constitutional sin of defection.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

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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

129Copy pinpoint129. 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 decision under Paragraph 15

130Copy pinpoint130. 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 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 thereto and for matters connected therewith.”

131Copy pinpoint131. 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

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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

132Copy pinpoint132. The ECI allots a symbol to every candidate who contests elections, in accordance with the Symbols Order.45 Some symbols are called “reserved symbols” because they are reserved for a recognised political party and are exclusively allotted to candidates set up by that party and the remaining symbols are called “free symbols.”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 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 to candidates who are not set up by the political party for which that symbol has been reserved.50

133Copy pinpoint133. From this, it is evident that the purpose of the Symbols Order is: a. To provide a uniform procedure for the recognition of political parties; and b. To provide a uniform and just system for the allotment of symbols for candidates to contest in elections.

134Copy pinpoint134. The raison d’être for the Symbols Order is the fact that 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

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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 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.

135Copy pinpoint135. The ECI is empowered to adjudicate disputes between rival 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 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 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 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.”

136Copy pinpoint136. The natural consequence of the decision of the ECI is that the group that is recognised as constituting the political party is allotted the symbol that was reserved for that political party. Prior to 1997, the faction which was not granted the symbol of the political party (and by corollary was not recognised as the political party) was also recognised as a National Party or a State Party under the Symbols Order.51 The H 51 V S Rama Devi and S K Mendiratta, How India Votes (3rd edition, 2014), at 621

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ECI departed from this practice in 1997. The ECI has since held that the 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 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.

137Copy pinpoint137. 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 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 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.

138Copy pinpoint138. 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

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A c. The test(s) applicable to disputes under Paragraph 15 of the Symbols Order

139Copy pinpoint139. 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

140Copy pinpoint140. 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.

141Copy pinpoint141. 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

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142Copy pinpoint142. On appeal, this Court upheld the decision of the ECI and 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 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 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 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

143Copy pinpoint143. 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

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