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

A d. The potential for complications in the present case

144Copy pinpoint144. In the present case, in late June 2022 and in the first week of July 2022, members of each faction filed petitions for the disqualification of members of the opposing faction under the Tenth Schedule. On 19 July 2022, Mr. Shinde filed a petition before the ECI under Paragraph 15 B of the Symbols Order, claiming that the faction led by him constituted the “real” Shiv Sena and that it should therefore be allotted the symbol of the Shiv Sena (the ‘bow and arrow’).

145Copy pinpoint145. When the Tenth Schedule and the Symbols Order are invoked concurrently, complications may arise, including in cases such as the present one. If the ECI applies the ‘test of majority,’ it will be required to consider (among other things) which of the two factions enjoys a majority in the Maharashtra State Legislature. Therefore, which faction has a majority in the House will have some bearing on the outcome of the proceedings before the ECI. Whether or not a particular faction has a majority in the legislature will depend on whether members from that faction have incurred disqualification. For example, we may illustratively consider a case where Party X has a hundred seats in the Legislative Assembly of a state. Two factions, Group A and Group B, emerge. The former consists of sixty MLAs and the latter consists of the remaining forty. Members of each group file disqualification petitions against members of the other group. The ECI is called upon to decide which group is Party X under Paragraph 15 of the Symbols Order. In terms of the law as it currently stands, there are two possible outcomes: a. The ECI renders its decision prior to the Speaker. It observes that Group A enjoys a majority in the legislature. This has a F significant bearing on its decision although it is not the only factor which is considered. Group A is adjudicated to be Party X and is awarded the symbol; or b. The Speaker renders their decision prior to the ECI. They disqualify some or all the members of Group A for violating G the anti-defection law. While adjudicating the petition under Paragraph 15 of the Symbols Order, the ECI (after taking into account the disqualification incurred by some or all of Group A) notes that Group A does not enjoy a majority in the legislature. Once again, this has a significant bearing on its decision although it is not the only factor which is H

SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 945 MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

considered. Group B is adjudicated to be Party X and is A awarded the symbol.

146Copy pinpoint146. The outcome of the dispute before the ECI may change depending on the outcome of the disqualification petitions. It is precisely this complication which the petitioners seek to guard against. The petitioners urge that when proceedings under Paragraph 15 of the B Symbols Order and the Tenth Schedule have arisen concurrently, this Court ought to lay down a ‘constitutional sequence’ for the proceedings. They submit that proceedings under the Tenth Schedule must be adjudicated before the dispute under Paragraph 15 of the Symbols Order is determined, and that a symbol can be allotted only after “the final adjudication of the Tenth Schedule proceedings.” C

147Copy pinpoint147. The contentions of the petitioners cannot be brushed aside. If the faction which enjoys a majority in the House is disqualified soon after being adjudicated to be the political party, the very foundation of their claim of being the political party no longer subsists. Even if they are not disqualified, the foundation of their claim (i.e., a legislative majority) D is still on uncertain ground at the time of adjudication. This is not a constitutionally desirable outcome. e. Harmonising the Tenth Schedule with Paragraph 15 of the Symbols Order E

148Copy pinpoint148. This Court cannot accept the solution proposed by the petitioners and lay down a constitutional sequence. To hold that the ECI is barred from adjudicating petitions under Paragraph 15 of the Symbols Order until the “final adjudication” of the disqualification petitions under the Tenth Schedule would be, in effect, to indefinitely stay the proceedings before the ECI. This is because an order of the Speaker attains finality F only after all avenues for appeal have been exhausted or are barred by the passage of time. The time that it would take for an order of the Speaker to attain finality is uncertain. The ECI is a constitutionally entrenched institution which is entrusted with the function of superintendence of and control over the electoral process. The ECI, G which is a constitutional authority, cannot be prevented from performing its constitutional duties for an indefinite period of time. Proceedings before one constitutional authority cannot be halted in anticipation of the decision of another constitutional authority.

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149Copy pinpoint149. This Court must also be alive to the possibility of the death of a political party in the intervening period, or further complications that may arise if elections are announced during the period when proceedings before the ECI are stayed, if a stay were to be granted. When a dispute under Paragraph 15 of the Symbols Order is pending adjudication, it is standard practice for the ECI to freeze the symbol reserved for that political party and allot interim symbols to the rival groups. If the reserved symbol is frozen for an inordinately long period of time and the interim symbols must be resorted to for every by-election and election, it may well end the association between the reserved symbol and the political party in the minds of the electorate. This will no doubt be a blow to the political party which is lawfully entitled to the symbol reserved for its use. Therefore, the ECI must render a decision as to which group constitutes that political party.

150Copy pinpoint150. In arriving at this decision, it is not necessary for the ECI to rely on the test of majority in the legislature alone. In cases such as the present one, it would be futile to assess which group enjoys a majority in the legislature. Rather, the ECI must look to other tests in order to reach a conclusion under Paragraph 15 of the Symbols Order. The other tests may include an evaluation of the majority in the organisational wings of the political party, an analysis of the provisions of the party constitution, or any other appropriate test. E

151Copy pinpoint151. When this Court decided the petition in Sadiq Ali (supra), the Tenth Schedule did not form a part of the Constitution. There was no way for this Court to have anticipated the complexities that could arise on its inclusion while deciding which test was most appropriate. Regardless, this Court did not hold that the test of majority in the legislature was exclusively appropriate or even that it was the primary test. It instead found that the test was suited to the facts and circumstances of that case. As noticed in the preceding paragraphs, nothing in the Symbols Order mandates the use of a particular test to the exclusion of other tests. The ECI must apply a test which is best suited to the unique facts and circumstances of the case before it. The parties in the dispute before the ECI are free to propose a suitable test and the ECI may either apply one of the tests proposed or fashion a new test, as appropriate. This Court observed in Sadiq Ali (supra) that the test of legislative majority was a relevant test under Paragraph 15 proceedings in that case for two reasons: first, INC was according to the court a democratic organisation, and numbers matter in such organisations; and second, the total number

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of seats secured by the political party in the legislative assembly is a A relevant factor for the recognition of a political party as a State or a National Party. When legislators are disqualified under the Tenth Schedule, the basis of recognition of the political party under the Symbols Order and correspondingly, one of the reasons for using the test of legislative majority itself becomes diluted. Thus, it is not appropriate to confine the ECI to the singular test of legislative majority in such situations.

152Copy pinpoint152. In Sadiq Ali (supra), this Court noted that one of the tests considered by the ECI was an assessment of which of the two rival groups adhered to the aims and objects of the party as incorporated in its constitution. This Court did not have occasion to express its opinion on the validity of this test because it found that the test of majority was relevant to the facts in Sadiq Ali (supra). Since we have left it open to the ECI to apply a test other than that which evaluates which of the groups constitute a majority, it becomes necessary to consider whether the alternatives are viable. D

153Copy pinpoint153. An evaluation of whether rival groups are adhering to the aims and objects of the party as incorporated in its constitution, and which of the rival groups is more in consonance with such aims and objects, is an entirely subjective exercise. Different groups may adopt different paths or methods to achieve the same object. It would not be appropriate for the ECI to accord its stamp of approval to the routes or methods chosen by one group over those chosen by another group. This would amount to entering the political arena. For example, one of the aims detailed in the constitution of a party could be that it will work towards attaining economic justice. Two rival sections of this party may emerge. The first group may happen to advocate for direct benefit transfers whereas the second group may be of the belief that subsidising the cost of certain products is a preferable alternative. The exercise of the ECI in determining which of these methods (and by extension, which of the rival groups) is more suited to attaining economic justice is subjective. Although this is a simplified example, it is illustrative of the manner in which the same goal can be sought to be attained by different routes, and the ECI while making such an assessment would be rendering its opinion without any objective basis. The ECI must remain a neutral body and refrain from passing a subjective judgement on the approaches preferred by the rival factions. H

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154Copy pinpoint154. At this stage, a question may arise as to whether the decision of the ECI under the Symbols Order must be consistent with the decision of the Speaker under the Tenth Schedule. The answer is no. This is because the decision of the Speaker and the decision of the ECI are each based on different considerations and are taken for different purposes. B

155Copy pinpoint155. The decision of the ECI has prospective effect. A declaration that one of the rival groups is that political party takes effect prospectively from the date of the decision. In the event that members of the faction which has been awarded the symbol are disqualified from the House by the Speaker, the members of the group which continues to be in the C House will have to follow the procedure prescribed in the Symbols Order and in any other relevant law(s) for the allotment of a fresh symbol to their group.

156Copy pinpoint156. The disqualification proceedings before the Speaker cannot be stayed in anticipation of the decision of the ECI. In cases where a D petition under Paragraph 15 of the Symbols Order is filed after the (alleged) commission of prohibitory conduct, the decision of the ECI cannot be relied upon by the Speaker for adjudicating disqualification proceedings. If the disqualification petitions are adjudicated based on the decision of the ECI in such cases, the decision of the ECI would E have retrospective effect. This would be contrary to law.

157Copy pinpoint157. When the conduct prohibited under the Tenth Schedule is (allegedly) committed, there is only one political party. As discussed in the preceding segments of this judgement, this necessitates the Speaker prima facie determining who the political party was at the time of the act which is alleged attract the provisions of the Tenth Schedule. The F decision of the Speaker that a member of the House is disqualified for voluntarily giving up the membership of the political party would only disqualify them from the House. It would not lead to an automatic expulsion of the member from the political party. It follows that the submission of the petitioners that a legislator who has incurred G disqualification under Paragraph 2 of the Tenth Schedule has no locus to institute a petition under Paragraph 15 of the Symbols Order, cannot be accepted. We accordingly answer the question referred to us as noted in Paragraph 32(j) of this judgment.

158Copy pinpoint158. In the proceedings instituted by Mr. Shinde under Paragraph H 15 of the Symbols Order, the ECI awarded the symbol “bow and arrow”

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reserved for the Shiv Sena to the faction led by him. The petitioners A challenged this order before this Court.54 By an order dated 22 February 2023, this Court issued notice. We have not expressed any opinion on the merits of that case. vi. The impact of the deletion of Paragraph 3 of the Tenth Schedule

159Copy pinpoint159. The Tenth Schedule to the Constitution was inserted by the B Constitution (Fifty-second Amendment) Act 1985. The Tenth Schedule sought to provide a remedy to the ‘constitutional sin’ of defection. Simply put, defection is the act of members of either House of the state legislature or of either House of Parliament shifting allegiances by exiting the political party on whose ticket they went to the polls and joining C another political party. The years prior to the insertion of the Tenth Schedule witnessed innumerable defections in political parties at both the Union and State level. The turbulent political scenario ensuing from these defections gave rise to the need for an anti-defection law in the country. D

160Copy pinpoint160. The Tenth Schedule penalises defection by disqualifying any member of the House who is found to have indulged in the prohibited act. Paragraph 2(1)(a) stipulates that a member of a House belonging to any political party shall be disqualified for being a member of the House if they have voluntarily given up their membership of such political party. Paragraph 2(1)(b) provides that a member shall be disqualified if they E vote or abstain from voting in the House contrary to any directions issued by the political party to which they belong, or by any person authorised by it in this behalf.

161Copy pinpoint161. Paragraph 6 of the Tenth Schedule entrusts the Speaker of the House with the authority to adjudicate disqualification petitions. While F adjudicating a disqualification petition, the Speaker must also consider any defence(s) raised by the member against whom the petition has been filed. The Tenth Schedule, as it currently stands, specifies five defences which a member may take recourse to, to shield themselves from the consequences of the anti-defection law: G a. A member will not be disqualified under Paragraph 2(1)(b) if they have obtained the prior permission of their political party to vote or abstain from voting contrary to the directions issued by such political party;55 54 SLP(C) No. 3997 of 2023 55 Paragraph 2(1)(b) of the Tenth Schedule to the Constitution H

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

162Copy pinpoint162. Prior to 2003, a sixth defence under Paragraph 3 was available to members against whom disqualification petitions were filed. Paragraph 56 Paragraph 2(1)(b) of the Tenth Schedule to the Constitution 57 Paragraph 4(1)(a) of the Tenth Schedule to the Constitution 58 Paragraph 4(2) of the Tenth Schedule to the Constitution 59 Paragraph 4(1)(b) of the Tenth Schedule to the Constitution H 60 Paragraph 5 of the Tenth Schedule to the Constitution

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3 stipulated that a member of the House would not be subject to disqualification if there was a split in their original political party. It was omitted from the Tenth Schedule by the Constitution (Ninety-first Amendment) Act 2003. Prior to its omission, Paragraph 3 read as follows: “3. Disqualification on ground of defection not to apply in case of split.—Where a member of a House makes a claim that he and any other members of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original political party and such group consists of not less than one-third of the members of such legislature party,— (a) he shall not be disqualified under sub-paragraph (1) of paragraph 2 on the ground— (i) that he has voluntarily given up his membership of his original political party; or (ii) that he has voted or abstained from voting in such House contrary to any direction issued by such party or by any person or authority authorised by it in that behalf without obtaining the prior permission of such party, person or authority and such voting or abstention has not been condoned by such party, person or authority within fifteen days from the date of such voting or abstention; and (b) from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of sub- paragraph (1) of paragraph 2 and to be his original political party for the purposes of this paragraph.” a. The defence of a ‘split’ is no longer available to members who face disqualification proceedings F

163Copy pinpoint163. The question before this Court is – what is the impact of the deletion of Paragraph 3 of the Tenth Schedule? This question has arisen in the context of both factions of the Shiv Sena claiming to be the “real” Shiv Sena. In effect, this points to the existence of a split within the SSLP. However, no faction or group can argue that they constitute the original political party as a defence against disqualification on the ground G of defection.

164Copy pinpoint164. The inevitable consequence of the deletion of Paragraph 3 from the Tenth Schedule is that the defence of a split is no longer available to members who face disqualification proceedings. In cases where a split has occurred in a political party or in a legislature party, members of H

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A neither faction may validly raise the defence that they are the political party in the event that each faction files petitions for the disqualification of members of the other faction. The defence sought to be availed of must be found within the Tenth Schedule as it currently stands.

165Copy pinpoint165. Members of multiple groups or factions can all continue as members of the House if the requirements of Paragraph 4(1) of the Tenth Schedule are satisfied. Two (or more) factions of a political party can both remain in the House if one of the factions has opted to merge with another political party in terms of Paragraph 4(1)(a) and the other faction has chosen not to accept the merger. However, in cases where a split has occurred, and members of one of the factions are found to have satisfied the conditions in Paragraph 2(1) and are also unable to establish any of the five defences detailed above, they would stand disqualified. The percentage of members in each faction is irrelevant to the determination of whether a defence to disqualification is made out.

166Copy pinpoint166. This is necessarily the implication of the deletion of Paragraph

D 3. To hold otherwise would be to permit the entry of the defence of ‘split’ in the Tenth Schedule through the back door. This is impermissible and would render the deletion of Paragraph 3 meaningless. It is trite law that what cannot be done directly cannot be permitted to be done indirectly.61The interpretation which we have expounded is the only one which comports with the deletion of Paragraph 3. b. The decision of the Speaker under Paragraph 2 of the Tenth Schedule

167Copy pinpoint167. Regardless of the defence available to members who face disqualification proceedings, the Speaker may be called upon to determine who the “real” political party is while adjudicating disqualification petitions under Paragraph 2(1)(a) where two or more factions of the political or legislature party have arisen. The effect of the deletion of Paragraph 3 is that both factions cannot be considered to constitute the original political party. In order to determine which (if any) of the members of the party have voluntarily given up membership of the political party under G Paragraph 2(1)(a), it is necessary to first determine which of the factions constitute the political party. This determination is a prima facie determination and will not impact any other proceedings including the proceedings under Paragraph 15 of the Symbols Order. 61 Delhi Admn. v. Gurdip Singh Uban, (2000) 7 SCC 296; Taxi Owners United Transport H v. State Transport Authority (Orissa), (1983) 4 SCC 34

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168Copy pinpoint168. In arriving at their decision, the Speaker must consider the constitution of the party as well as any other rules and regulations which specify the structure of the leadership of the party. If the rival groups submit two or more versions of the party constitution, the Speaker must consider the version which was submitted to the ECI before the rival factions emerged. In other words, the Speaker must consider the version of the party constitution which was submitted to the ECI with the consent of both factions. This will obviate a situation where both factions attempt to amend the constitution to serve their own ends. Further, the Speaker must not base their decision as to which group constitutes the political party on a blind appreciation of which group possesses a majority in the Legislative Assembly. This is not a game of numbers, but of something more. The structure of leadership outside the Legislative Assembly is a consideration which is relevant to the determination of this issue.

169Copy pinpoint169. The deletion of Paragraph 3 impacts the proceedings under Paragraph 2(1)(b) as well. When there are two Whips appointed by two or more factions of the political party, the Speaker, as held in the preceding section of the judgement, decides which of the two Whips represents the political party. Thus, the adjudication of the Speaker on whether a member must be disqualified under Paragraph 2(1)(b) would also depend on the decision of the Speaker recognising one of the two (or more) Whips. We accordingly answer the question referred to us as noted in Paragraph 32(f) of this judgment. E

vii. The exercise of discretion by the Governor in directing Mr. Thackeray to face a floor test

170Copy pinpoint170. The facts relevant to the determination of this issue have been narrated in the introductory part of this judgement. To recount, thirty-four MLAs of the Shiv Sena met and passed a resolution on 21 June 2022. The resolution reaffirmed that Mr. Eknath Shinde “continues to be” the Group Leader of the SSLP, cancelled the appointment of Mr. Sunil Prabhu as the Chief Whip, and appointed Mr. Bharat Gogawale in his place. The signatories also expressed their discontent and dissatisfaction with the Shiv Sena for forming the Government in alliance with the INC and the NCP. Separately, on 28 June 2022, the Governor received letters from the Leader of Opposition at the time, Mr. Devendra Fadnavis, and seven MLAs who were elected as independent candidates requesting him to direct Mr. Thackeray to prove his majority on the floor of the House. On the same day, the Governor issued the communication H

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A impugned in WP(C) 470 of 2022 to Mr. Thackeray, directing him to prove his majority on the floor of the House on 30 June 2022. Mr. Thackeray resigned on 29 June 2022 after this Court declined to stay the trust vote. Thus, WP(C) 470 of 2022 has been rendered infructuous. This Court is no longer called upon to set aside the letter dated 28 June

2022. However, the question of whether the Governor exercised the B discretion vested in him by the Constitution in accordance with law is required to be addressed by this Court in view of the enormity of the responsibility entrusted with the gubernatorial office as well as the significance of the consequences which follow from the exercise of such discretion.

171Copy pinpoint171. The letter sent by the Governor to the then-Chief Minister indicates that he relied on the following circumstances in arriving at the conclusion that a floor test was required: a. A letter received from the then Leader of Opposition stating that Mr. Thackeray no longer enjoyed the confidence of D the House; b. Letters received from seven independent MLAs requesting the Governor to direct Mr. Thackeray to prove his majority on the floor of the House;

E c. The resolution dated 21 June 2022 signed by thirty-four members of the SSLP stating that they were dissatisfied with the Shiv Sena for forming an alliance with the INC and the NCP; d. A letter dated 21 June 2022 addressed by Mr. Shinde to the F Deputy Speaker stating that the appointment of Mr. Ajay Choudhari as the Leader of the SSLP was illegal; and e. A letter dated 25 June 2022 received from thirty-eight members of the SSLP stating that the security provided to them by the State Government had been withdrawn illegally and that their lives were in danger. G

172Copy pinpoint172. Based on these materials, the Governor (in the letter dated 28 June 2022) concluded that Mr. Thackeray had lost the confidence of the House: “… a majority of the Shiv Sena MLAs have given a clear indication on behalf of the Shiv Sena Legislature Party that they intend to

SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 955 MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

exit from the Maha Vikas Aghadi Government and that you have been made aware of the same and that you are trying to win over your MLAs and cadre by means which are not democratic. I am therefore confident that you and your Government has lost the trust of the House and the Government is in minority.” The Governor then called upon Mr. Thackeray to prove his majority on the floor of the House on 30 June 2022.

173Copy pinpoint173. The Governor constitutes an integral part of a State Legislature. The executive power of the State is vested in the Governor. Article 163 requires the Governor to exercise their legislative and executive power on the aid and advice of the Council of Ministers. Article C 163(2) empowers the Governor to exercise their discretionary powers when required by or under the Constitution. Article 174(1) provides that the Governor shall from time to time summon the House to meet at such time and place as they think fit. Article 175(1) empowers the Governor to address the House. Article 175(2) permits the Governor to send messages to the House whether with respect to a pending Bill or D otherwise. a. The power of the Governor to call for a floor test

174Copy pinpoint174. In S R Bommai (supra) the Janata Party formed the government in Karnataka under the leadership of S R Bommai in August E

175Copy pinpoint175. This Court held that the Governor cannot decide whether the Council of Ministers has lost the confidence of the House and this has to be determined on the floor of the House. This Court approvingly H

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A referred to the Report of the five-member Committee of Governors which recommended that when a Governor is satisfied “by whatever process or means” that the Government no longer enjoys the support of the majority, they should ask the Chief Minister to prove their majority on the floor of the Assembly. B P Jeevan Reddy, J held that loss of confidence by a Government is an objective fact which has to be ascertained only on the floor of the House: “391. [...] The Constitution does not create an obligation that the political party forming the ministry should necessarily have a majority in the Legislature. Minority Governments are not unknown. What is necessary is that that Government should enjoy the confidence of the House. This aspect does not appear to have been kept in mind by the Governor. Secondly and more importantly, whether the Council of Ministers has lost the confidence of the House is not a matter to be determined by the Governor or for that matter anywhere else except the floor of the House. The D principle of democracy underlying our Constitution necessarily means that any such question should be decided on the floor of the House. The House is the place where the democracy is in action. It is not for the Governor to determine the said question on his own or on his own verification. This is not a matter within his subjective satisfaction. It is an objective fact capable of being established on the floor of the House. [...]”

176Copy pinpoint176. In Shivraj Singh Chouhan (supra), the government in the State of Madhya Pradesh was formed by the INC. During the term of the Assembly, MLAs of the BJP submitted resignation letters of twenty- two MLAs from the INC to the Speaker. The Speaker accepted six of the twenty-two resignations. The party in the opposition in the Assembly wrote a letter to the Governor adverting to these resignations. The Governor directed a trust vote to be carried out. The action of the Governor was assailed before this Court. This Court held that the constitutional scheme vested the Governor with the power and discretion to call for a trust vote in a “running Assembly” and that such a decision is subject to judicial review. This Court ruled that the decision to call for a floor test should be based on objective material and reasons which are relevant and germane to the exercise of discretion, and not extraneous to it. The Court emphasised that the Governor should not use their discretionary power to destabilise or displace democratically elected governments:

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“71. The powers which are entrusted to constitutional functionaries are not beyond the pale of judicial review. Where the exercise of the discretion by the Governor to call a floor test is challenged before the court, it is not immune from judicial review. The court is entitled to determine whether in calling for the floor test, the Governor did so on the basis of objective material and reasons which were relevant and germane to the exercise of the power. The exercise of such a power is not intended to destabilise or displace a democratically elected Government accountable to the Legislative Assembly and collectively responsible to it. The exercise of the power to call for a trust vote must be guided by the overarching consideration that the formation of satisfaction by the Governor is not based on extraneous considerations.”

177Copy pinpoint177. This Court also observed that unless there are “exigent and compelling circumstances”, the Governor should not prevent the ordinary legislative process of a no-confidence motion from running its due course. In Shivraj Singh Chouhan (supra), the Speaker accepted the resignations of only six members who were Ministers of the incumbent Government, and adjourned the Assembly for thirteen days. It was in view of these facts that this Court held there was objective material and relevant reasons for the Governor to call for a floor test.

178Copy pinpoint178. The power of the Governor to summon the House under E Article 174 must be exercised on the aid and advice of the Council of Ministers. Rule 95 of the Maharashtra Legislative Assembly Rules stipulates that a member who wishes to move a motion of no-confidence in the Council of Ministers shall do so by a notice in writing. If the motion is admitted by the Speaker and the Assembly is in session, leave to move the motion must be granted not later than two days from the date of the notice. However, if the notice is received when the Assembly is not in session, leave to move the motion shall be granted within two days from the commencement of the session.

179Copy pinpoint179. To avert a no-confidence motion, the incumbent Government may not advise the Governor to convene a session of the Assembly, and the Speaker may adjourn the sitting of the House to prevent voting for granting leave to move a motion of no-confidence. If the Speaker and the Government attempt to circumvent a no-confidence motion, the Governor would be justified in exercising the power under Article 174 without the aid and advice of the Council of Ministers. H

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180Copy pinpoint180. The Constitution and the system of governance that it provides is based on representative democracy. This means that each citizen has an active and participatory role in how the governments at various levels function. The elected representatives of the people act on their behalf by enacting laws and overseeing the implementation of policies. This is our chosen path to achieve democracy. Direct and indirect elections and B the candidates who are elected are indispensable to our model of representative democracy. Hence, the Constitution empowers the elected representatives to act on behalf of the people. Consequently, the Governor who despite their constitutional status is unelected, is vested with limited discretionary powers.

181Copy pinpoint181. The power of the Governor to act without the aid and advice of the Council of Ministers is of an extraordinary nature. The exercise of such powerhas ramifications on parliamentary democracy. Hence, the ambit of the exercise of such power by the Governor must be calibrated to meet the exigencies of situations where the Governor is D satisfied on the basis of objective material that there is sufficient cause to warrant the exercise of their extraordinary power. The discretion to call for a floor test is not an unfettered discretion but one that must be exercised with circumspection, in accordance with the limits placed on it by law. E b. The Governor’s exercise of the power to call for a floor test

182Copy pinpoint182. In his letter dated 28 June 2022, the Governor relied on the five circumstances mentioned above to arrive at following conclusions: (i) a majority of the MLAs of Shiv Sena intended to exit from the MVA F government; (ii) Mr. Thackeray was trying to win over the MLAs using undemocratic methods; and (iii) Mr. Thackeray had lost the trust of the House and the MVA Government was in the minority.

183Copy pinpoint183. The petitioners have urged that the Governor was not justified in reaching the conclusion that he did on the basis of the resolution dated G 21 June 2022 because: (i) the thirty-four MLAs belonging to Shiv Sena did not express their intention to exit the MVA government; and (ii) the MLAs who signed the resolution constituted a faction of the SSLP.

184Copy pinpoint184. Although the resolution dated 21 June 2022 specifies that some MLAs of the SSLP were dissatisfied with the functioning of the MVA government, it does not record their intention to withdraw support H

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from the Government. Among the thirty-four MLAs who signed the resolution dated 28 June 2022, a few were also Ministers in the Government. On the basis of this resolution, the Governor concluded that “a majority of the Shiv Sena MLAs have given a clear indication … that they intend to exit from the Maha Vikas Aghadi Government.”

185Copy pinpoint185. The assembly was not in session when Mr. Fadnavis and seven independent MLAs wrote to the Governor. However, there was no attempt made by the members of the opposition parties to issue a notice for a no-confidence motion against the incumbent government.

186Copy pinpoint186. The Governor had no objective material on the basis of which he could doubt the confidence of the incumbent government. The C resolution on which the Governor relied did not contain any indication that the MLAs wished to exit from the MVA government. The communication expressing discontent on the part of some MLAs is not sufficient for the Governor to call for a floor test. The Governor ought to apply his mind to the communication (or any other material) before him to assess whether the Government seemed to have lost the confidence of the House. We use the term ‘opinion’ to mean satisfaction based on objective criteria as to whether he possessed relevant material, and not to mean the subjective satisfaction of the Governor. Once a government is democratically elected in accordance with law, there is a presumption that it enjoys the confidence of the House. There must exist some objective material to dislodge this presumption.

187Copy pinpoint187. The MLAs did not express their desire to withdraw support from the MVA Government in the resolution dated 21 June 2022. Even if it is assumed that the MLAs implied that they intended to exit from the Government, they only constituted a faction of the SSLP and were at most, indicating their dissatisfaction with the course of action adopted by their political party.

188Copy pinpoint188. The political imbroglio in Maharashtra arose as a result of party differences within the Shiv Sena. However, the floor test cannot be used as a medium to resolve internal party disputes or intra party disputes. Dissent and disagreement within a political party must be resolved in accordance with the remedies prescribed under the party constitution, or through any other methods that the party chooses to opt for. There is a marked difference between a party not supporting a government, and individuals within a party expressing their discontent with their party leadership and functioning. H

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189Copy pinpoint189. The Governor is the titular head of the State Government. He is a constitutional functionary who derives his authority from the Constitution. This being the case, the Governor must be cognizant of the constitutional bounds of the power vested in him. He cannot exercise a power that is not conferred on him by the Constitution or a law made under it. Neither the Constitution nor the laws enacted by Parliament B provide for a mechanism by which disputes amongst members of a particular political party can be settled. They certainly do not empower the Governor to enter the political arena and play a role (however minute) either in inter-party disputes or in intra-party disputes. It follows from this that the Governor cannot act upon an inference that he has drawn that a section of the Shiv Sena wished to withdraw their support to the Government on the floor of the House.

190Copy pinpoint190. It is true that the letter dated 25 June 2022 sent by some MLAs of the Shiv Sena to the Governor requesting him to issue directions to the appropriate authorities for the restoration of their security details mentions that those MLAs “no longer wanted to be a part of the corrupt MVA government.” However, this cannot be taken to mean that they had withdrawn their support on the floor of the House. Nothing in any of the communications relied upon by the Governor indicates that the dissatisfied MLAs from the Shiv Sena intended to withdraw their support to the Chief Minister and the Council of Ministers. At the highest, the various communications expressed the fact that a faction of MLAs disagreed with some policy decisions of the party. The course of action they wished to adopt in order to air their grievances and redress them was, at the time the floor test was directed to be conducted, uncertain. Whether they would choose to enter deliberations with their colleagues in the House or in the political party, or mobilise the cadres, or resign from the Assembly in protest, or opt to merge with another party, was uncertain. Therefore, the Governor erred in relying upon the resolution signed by a faction of the SSLP MLAs to conclude that Mr. Thackeray had lost the support of the majority of the House.

191Copy pinpoint191. Second, the Governor relied on the letter dated 25 June 2022 from thirty-eight SSLP members claiming that the security provided to them and to their families was illegally withdrawn. The MLAs claimed that the security was withdrawn to coerce them into continuing to support the MVA government “against their free will.” Therefore, they demanded restoration of the security provided to them and to their family members. H

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After receiving the letter, the Governor issued directions to the state police to provide adequate protection to the MLAs, the members of their families, and their property. However, the lack of security to MLAs has no bearing on the question of whether the Government enjoys the confidence of the House. The appropriate response of the Governor in such cases is to ensure that the security that they are lawfully entitled to continues to be provided to them, if it has been removed. This was an extraneous reason that was considered by the Governor.

192Copy pinpoint192. The third communication that the Governor relied on is the letter dated 21 June 2022 addressed by Mr. Eknath Shinde to the Deputy Speaker stating that the appointment of Mr. Ajay Choudhari was illegal. The Governor may not enquire into or express an opinion on the validity of proceedings of the legislature. That is exclusively within the domain of the legislature itself or in certain circumstances (discussed in the previous segment of this judgement) within the domain of Courts. The discretionary power of the Governor under Article 163 of the Constitution is limited to situations where a constitutional provision expressly provides for it, or where the Constitution cannot be construed otherwise than to grant such discretion.62 Hence, the Governor ought not to have relied on the letter dated 21 June 2022. In any event, the contents of the letter did not indicate anything to suggest that the then-Chief Minister Mr. Thackeray had lost the confidence of the House. E

193Copy pinpoint193. Finally, the Governor relied on the letters written by Mr. Fadnavis and seven ‘independent’ MLAs, calling upon him to direct Mr. Thackeray to prove his majority on the floor of the House. First, both Mr. Fadnavis as well as the seven MLAs could have well moved a motion of no-confidence. Nothing prevented them from doing so. Second, a request by some MLAs for a direction to the Chief Minister to prove his majority does not, taken alone, amount to a relevant and germane reason to call for a floor test. There must be some objective material in addition to a mere request to call for a floor test. In the present case, the Governor did not have any objective material before him to indicate that the incumbent government had lost the confidence of the House and that he should call for a floor test. Hence, the exercise of discretion by the Governor in this case was not in accordance with law.

194Copy pinpoint194. Relying on Bommai (supra) and Nabam Rebia (supra), the petitioners argue that this Court has the power to restore the status quo 62 Nabam Rebia (supra) H

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A ante and rule that the Government with Mr. Thackeray as its Chief Minister is to be reinstated. However, this argument does not account for the fact that Mr. Thackeray did not face the floor test on 30 June 2022 and instead submitted his resignation. This Court cannot quash a resignation that has been submitted voluntarily. Had Mr. Thackeray refrained from resigning from the post of the Chief Minister, this Court B could have considered the grant of the remedy of reinstating the government headed by him. The order of this Court dated 29 June 2022 held that the outcome of the trust vote to be conducted on 30 June 2022 “shall be subject to the final outcome” of this batch of petitions. Since the trust vote was not held, the question of it being subject to the final outcome of these petitions does not arise.

195Copy pinpoint195. The petitioners urge that the pendency of disqualification petitions before the Speaker or the Deputy Speaker ought to have resulted in the postponement of the floor test. This argument cannot be accepted. As discussed in the previous section of this judgement, the pendency of disqualification petitions does not bar an MLA from participating in the proceedings of the House. This includes the right of an MLA to participate in the floor test. It is true that adjudication of disqualification petitions would alter the numbers in the Assembly, and ultimately bear on the outcome of a floor test. The option of initiating a no-confidence motion after the adjudication of disqualification petitions is open to the MLAs. E However, this Court cannot stay the proceedings of the House until the disqualification petitions are decided. To do so would amount to interfering with the proceedings of the House. The discretion of the Governor to direct the Chief Minister to face a floor test ought to be based on objective material. F viii. The exercise of discretion by the Governor in inviting Mr. Shinde to be the Chief Minister

196Copy pinpoint196. The petitioners have challenged the exercise of discretion by the Governor in inviting Mr. Shinde to form the government on two grounds: first, Mr. Shinde’s appointment is barred by Article 164(1B) of G the Constitution; and second, the Governor has exceeded the scope of his authority by recognizing one of the two rival factions as being the “real” Shiv Sena. These submissions are addressed in turn. a. Mr. Shinde’s appointment is not barred by Article 164(1B) of the Constitution H

SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 963 MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

197Copy pinpoint197. Article 164(1B) of the Constitution is reproduced below: A “ 164. Other provisions as to Ministers. … (1B) A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council B belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests C any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier.” (emphasis supplied) D

198Copy pinpoint198. Article 164(1B) bars an MLA or a Member of the Legislative Council of a State (where one exists) from being appointed as a Minister if they have been disqualified under Paragraph 2 of the Tenth Schedule. The bar begins to operate only upon the member of the legislature incurring disqualification. Article 164(1B) does not interdict the appointment of a member to the post of a Minister if a petition for their disqualification under Paragraph 2 of the Tenth Schedule is pending adjudication before the Speaker. This is evident from the language of Article 164(1B), which states that a member who is disqualified under Paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister.

199Copy pinpoint199. In other words, the mere institution of a disqualification petition does not trigger some or all of the consequences which flow from the disqualification itself. To hold otherwise would be to blur or efface the distinction between the institution of a disqualification petition against a G member of the House and the disqualification of that member. A claim that something is true does not mean that it is actually true. A claim must be established according to the procedure established by law before it can be considered to be a fact. When a petition for disqualification under the Tenth Schedule is filed before the Speaker, the party who filed the petition asserts that the respondent in the petition has contravened the H

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A provisions of the Tenth Schedule. This averment must be tested on the anvil of evidence before the Speaker, who acts as a Tribunal under the Tenth Schedule. Article 164(1B) is therefore triggered only when the Speaker returns a verdict finding that the member of the House in question has breached Paragraph 2 of the Tenth Schedule. If the Speaker finds that Mr. Shinde is disqualified, he will no longer be eligible to hold the post of Chief Minister for the duration specified in Article 164(1B).

200Copy pinpoint200. The petitioners have relied on the decision in Rajendra Singh Rana (supra) in support of their contention. As discussed in the previous segment of this judgment, the disqualification of a member of the House relates back to the date on which the proscribed act was performed for the purpose of determining whether a defence to disqualification is made out.

201Copy pinpoint201. The petitioners have also relied on the decision in Shrimanth Balasaheb Patil(supra) to urge that the appointment of Mr. Shinde is barred by Article 164(1B). In this case, the State Government of D Karnataka was formed by a coalition consisting of MLAs of the INC and the Janata Dal (Secular) in 2018. In early 2019, a series of disqualification petitions under the Tenth Schedule were filed against MLAs of various parties which formed the government. Some of them submitted their resignations to the Speaker either immediately before or E shortly after the disqualification petitions were filed against them. The case had a chequered history. The Speaker ultimately passed an order inter alia disqualifying these MLAs.

202Copy pinpoint202. Aggrieved by the order of the Speaker, the disqualified MLAs approached this Court under Article 32 of the Constitution. The MLAs F who had tendered their resignations argued that the Speaker did not have the jurisdiction to adjudicate the petitions for their disqualification because they had already resigned and were therefore not members of the House who could be disqualified. Relying on Rajendra Singh Rana (supra), this Court rejected this submission and held that the Speaker has the jurisdiction to determine the disqualification petitions because G disqualification relates to the date when the act constituting defection is alleged to have been committed: “93. As such, there is no doubt that the disqualification relates to the date when such act of defection takes place. The tendering of resignation does not have a bearing on the jurisdiction of the H Speaker in this regard. At this point we may allude to the case of

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

203Copy pinpoint203. The decision in Shrimanth Balasaheb Patil (supra) applied the principle that disqualification relates to the date on which the act of defection takes place to mean that acts or events subsequent to the commission of the conduct prohibited under the Tenth Schedule, do not have an exculpatory effect. In other words, subsequent acts or events F do not have the effect of curing such conduct or releasing the actor from the consequences which follow. This is consistent with the decision in Rajendra Singh Rana(supra). Mr. Shinde’s appointment is therefore not barred by Article 164(1B) of the Constitution. b. The Governor did not exceed the scope of his authority G

204Copy pinpoint204. The petitioners submit that the Governor has exceeded the scope of his authority by inviting Mr. Shinde to form the government because: a. The President of the Shiv Sena, Mr. Thackeray, was not in favour of a government formed in coalition with the BJP. H

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A However, the group led by Mr. Shinde was in favour of such an alliance. By inviting Mr. Shinde to form the government, the Governor has de facto recognized the group led by him as the “real” Shiv Sena; and b. The Governor is not empowered to recognize the legitimacy of one faction over another. The ECI is the appropriate authority to determine which of the two factions constitute the Shiv Sena.

205Copy pinpoint205. The BJP returned one hundred and six candidates to the Maharashtra Legislative Assembly, the highest amongst all political parties. It formed the primary opposition party in the House. By a letter dated 30 June 2022, the then Leader of Opposition, Mr. Fadnavis, wrote to the Governor claiming that one hundred and six MLAs of the BJP extend their support to Mr. Eknath Shinde for the formation of a government headed by Mr. Shinde. Eight independent candidates also extended their support to a government helmed by Mr. Shinde. On the same day, Mr. Shinde wrote to the Governor seeking to be called to form the Government. Based on the material before him, that is, the communications received, the Governor invited Mr. Shinde to take the oath of office, and directed him to prove his majority on the floor of the House within a period of seven days. The post of the Chief Minister of the State of Maharashtra fell vacant after the resignation of Mr. Thackeray on 29 June 2022. The leader of the party that had returned the highest number of candidates to the State Assembly extended support on behalf of the party to Mr. Shinde. Thus, the decision of the Governor dated 30 June 2022 inviting Mr. Shinde to form the Government was justified. F F. Conclusions

206Copy pinpoint206. In view of the discussion above, the following are our conclusions: a. The correctness of the decision in Nabam Rebia (supra) G is referred to a larger Bench of seven judges; b. This Court cannot ordinarily adjudicate petitions for disqualification under the Tenth Schedule in the first instance. There are no extraordinary circumstances in the instant case that warrant the exercise of jurisdiction by this H Court to adjudicate disqualification petitions. The Speaker

SUBHASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF 967 MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

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

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A had lost the confidence of the House. However, the status quo ante cannot be restored because Mr. Thackeray did not face the floor test and tendered his resignation; and i. The Governor was justified in inviting Mr. Shinde to form the government.

207Copy pinpoint207. This batch of Writ Petitions is disposed of in terms of the conclusions and directions recorded above.

208Copy pinpoint208. Pending applications, if any, stand disposed of.

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