As a Constitution bench of the Supreme Court begins to hear on merits the matter related to the Maharashtra political crisis, here is an overview of the developments that have transpired so far, and the legal and constitutional issues at stake.
ON February 17, the Supreme Court Constitution bench of Chief Justice of India (CJI) Dr. D.Y. Chandrachud and Justices Hima Kohli, M.R. Shah, Krishna Murari and P.S. Narasimha, in a batch of petitions in Subhash Desai versus Principal Secretary, Governor of Maharashtra and Ors, decided that the question as to whether reference to a seven-judge bench of the court on the correctness of its judgment in Nabam Rebia, & Bamang Felix versus Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) was needed would be determined along with the merits of the instant case. The hearing on merits began today.
This came after the bench had heard preliminarysubmissions from both sides last week on whether Nabam Rebia imposes a disability on the function of a Speaker of a legislative assembly as a Tribunal under the Tenth Schedule of the Constitution.
The bench remarked that the consequence of this judgment on both sides has “serious ramifications” on the polity of India.
Why were the batches of petitions filed?
The batch of petitions was filed in wake of the Maharashtra political crisis in June last year, when the current Chief Minister Eknath S. Shinde and his followers from the Shiv Sena in the Maharashtra Vidhan Sabha rebelled against then Chief Minister Uddhav B. Thackeray, eventually bringing down the Maha Vikas Aghadi government (comprising of the Shiv Sena, the Nationalist Congress Party and the Indian National Congress).
Treating anti-party activities as ‘voluntarily’ giving up membership of the political party, then Chief Minister Thackeray had issued 16 disqualification petitions, including against Shinde, through Deputy Speaker Narhari Sitaram Zirwal on June 25, 2022, under Paragraph 2(1)(a) of the Tenth Schedule.
The legislators were given two days to respond to these notices. However, the Shinde-led faction challenged the notices before the Supreme Court on the grounds that a no-confidence motion for the removal of the Deputy Speaker has been moved and that he couldn’t decide on the disqualification petitions whilst himself being under the cloud of removal. Giving a two-day period to respond to the disqualification notices was also challenged.
This order created a controversy because a Constitution bench of the Supreme Court, in its landmark judgment of Kihoto Hollohan versus Zachillhu & Ors (1992), had held that it could not interfere in the jurisdiction of a Speaker, except when there is an interim disqualification, as that would mean disqualification per se.
According to P.D.T. Achary, former Secretary General of the Lok Sabha, the Speaker has to give seven days’ time to the legislators to respond to these notices. It is their sole prerogative to extend the time period. The court, however, has no role to play in extending the time period.
The Deputy Speaker rejected the notice of his removal on the ground that it came from an unidentified email and the genuineness of the signatures annexed to it could not be ascertained. As per Achary, the Deputy Speaker was well within his mandate to reject such a motion as it requires to have specific charges against him related to his functioning in the House.
The next day, the Shinde faction, and then Leader of Opposition in the Maharashtra Assembly, Bharatiya Janata Party’s Devendra Fadvanis requested then Governor Bhagat Singh Koshyari to direct a floor test in the Assembly. Koshyari ordered the floor test to be held on the morning of June 30.
This was challenged by the Thackeray-led government in the Supreme Court but in vain. On June 29, the Supreme Court refused to interfere and did not stay the floor test. Later that day, Thackeray resigned as Chief Minister and Shinde staked a claim to form a government.
Apart from the Thackeray faction’s petitions relating to the disqualification proceedings against the rebel faction’s MLAs, a writ petition was filed by then General Secretary of the Thackeray-led Shiv Sena, Subhash Desai, challenging the Governor’s invitation for Shinde to form the government. It also contested the election of the new Speaker, Rahul Narwekar, and his subsequent recognition of Bharatshet Gogawale as the Chief Whip of the rebel faction of Shiv Sena, instead of Thackeray’s nominee Sunil Prabhu.
June 20: Shinde’s faction cross-votedin Member of Legislative Council polls. Thackeray calls an emergency meeting.
June 22: Shinde, along with 40 Members of the Legislative Assembly (MLAs) moved to Guwahati from Surat. The next day, these MLAs declared Shinde the leader of the Shiv Sena. The Thackeray-led Shiv Sena filed disqualification petitions against 16 legislators, including Shinde, to the Deputy Speaker.
June 24: A no-confidence motion was moved by the rebel MLAs against the Deputy Speaker. The Speaker rejected the motions on the basis of lack of authenticity.
June 25: Disqualification notices served to the rebel MLAs.
June 26: Shinde-led faction challenged the disqualification petitions before the Supreme Court.
June 27: Supreme Court stayed the disqualification proceedings, and gave the rebel MLAs 12 days to reply.
28 June: Maharashtra Governor orders a floor test in the Vidhan Sabha on June 30. This is challenged by the Thackeray faction before the Supreme Court.
June 29: Supreme Court refused to stay the floor test. Thackeray eventually resigned as the Chief Minister.
June 30: Shinde sworn in as the Chief Minister.
How did the reference to Nebam Rebia emerge?
The batch of petitions was heard by a bench led by former CJI N.V. Ramana and Justices Murari and Kohli. The bench, in its August 23, 2022 order, observed that the batch of petitions raises important constitutional questions on the interpretation of the Tenth Schedule.
The bench formulated the following ten questions to be answered by a five-judge Constitution bench:
Whether notice for removal of a Speaker restricts him from continuing with disqualification proceedings under the Tenth Schedule of the Constitution, as held by this court in Nebam Rebia?
Whether a petition under Article 226or Article 32 of the Constitution lies, inviting a decision on a disqualification petition by high courts or the Supreme Court, as the case may be?
Can a court hold that a member is ‘deemed’ to be disqualified, by virtue of their actions, absent a decision by the Speaker?
What is the status of proceedings in the House during the pendency of disqualification petitions against the members?
If the decision of a Speaker that a member has incurred disqualification under the Tenth Schedule relates back to the date of the action complained of, then what is the status of proceedings that took place during the pendency of a disqualification petition?
What is the impact of the removal of Paragraph 3 of the Tenth Schedule?
What is the scope of the power of the Speaker to determine the Whip and the leader of the house legislature party? What is the interplay of the same with respect to the provisions of the Tenth Schedule?
Are intraparty decisions amenable to judicial review? What is the scope of the same?
What is the extent of discretion and power of the Governor to invite a person to form the government, and whether the same is amenable to judicial review?
What is the scope of the powers of the Election Commission of India (ECI) with respect to determination of a split within a party?
One of the questions pertaining to the power of the Speaker or the Deputy Speaker to initiate disqualification proceedings, whilst proceedings on their removal are pending, concerned the reasoning laid down in Nabam Rebia.
The Constitution bench of five judges in Nabam Rebia held: “We are…of the view that constitutional purpose and constitutional harmony would be maintained and preserved, if a Speaker refrains from adjudication of a petition for disqualification under the Tenth Schedule, whilst his own position, as the Speaker, is under challenge. This would also allow [Article 179(c) and the Tenth Schedule] to operate in their individual constitutional space, without encroaching on the other.”
In Nabam Rebia, 21 legislators of the Indian National Congress in Arunachal Pradesh had rebelled against the then Chief Minister Nabam Tuki of the Congress. Some members of the Assembly had written to the Governor to communicate their displeasure with the Speaker and the state government.
The Governor, without acting on the aid and advice of Tuki, moved the Assembly session earlier in time and listed the removal of the Speaker on the legislative agenda. Meanwhile, the Speaker had disqualified the rebel legislators on the ground of defection. When the Assembly met, a resolution for the Speaker’s removal was adopted.
In Nabam Rebia, the court restored the status quo ante and held that the Governor has no role to play in the removal of the Speaker.
Three concurring judgments were delivered: by then Justice J.S. Khehar on behalf of himself, Justice P.C. Ghose and then Justice N.V. Ramana, by then Justice Dipak Misra, and by Justice Madan B. Lokur.
In the judgment authored by Justice Khehar, the court observed: “We are satisfied, that the words ‘passed by a majority of all the then members of the Assembly’, would prohibit the Speaker from going ahead with the disqualification proceedings under the Tenth Schedule, as the same would negate the effect of the words ‘all the then members’, after the disqualification of one or more MLAs from the House. The words ‘all the then members’, demonstrate an expression of definiteness.”
Article 179(c) states that the Speaker or Deputy Speaker may be removed from his office by a resolution of the Assembly passed by a majority of “all the then members of the Assembly”.
The court further noted: “Any change in the strength and composition of the Assembly, by disqualifying sitting MLAs, for the period during which the notice of resolution for the removal of the Speaker (or the Deputy Speaker) is pending, would conflict with the express mandate of Article 179(c), requiring all ‘the then members’ to determine the right of the Speaker to continue.”
In Justice Misra’s concurring opinion, he observed: “When there is an expression of intention to move the resolution to remove him, it is requisite that he should stand the test and then proceed…It would be an anathema to the concept of constitutional adjudication, if the Speaker is allowed to initiate proceeding under the Tenth Schedule of the Constitution after intention to remove him from his office is moved…”
While Justice Lokur held that 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.”
What has been argued so far in the Supreme Court on Nabam Rebia?
Senior advocate Kapil Sibal, for the Thackeray faction, argued last week that the reasoning in Nabam Rebia is wrong. It is because the consequence of not allowing the Speaker to perform their functions as Tribunal adjudicating rights under the Tenth Schedule often leads to the toppling of the legitimate government, as happened in the case of Maharashtra.
Sibal explained that the disability attached to the Speaker starts when a fourteen days’ notice for their removal is issued by a legislator under Article 179(c). The House doesn’t need to be in session for such a notice to be issued.
According to Rule 11 of the Maharashtra Legislative Assembly Rules, after the expiration of the fourteen days’ notice period, the Speaker will read the notice before the House and ten per cent of the majority membership (29 legislators for Maharashtra) must vote in its favour for a leave to be granted.
After the leave is granted, within a period of seven days, a resolution against the Speaker’s removal must be passed. If the Speaker survives the motion, they can continue to decide on the disqualification petitions.
Sibal told the bench that no constitutional authority can have a hiatus in its functioning. He referred to the second proviso of Article 179(c) of the Constitution which states that the Speaker continues to perform its legislative functions even when the Assembly is dissolved. He shall not vacate his office until immediately before the first meeting of the Assembly after the dissolution.
Sibal had suggested the proposition to the court that the notice to the Speaker for their removal must only be issued when the Assembly is in session. He also made an argument that the Constitution takes note of the possibility of the Speaker acting in their own cause and makes a clear bifurcation in that regard, as it has been done in Article 181 of the Constitution.
Article 181, which prescribes that the Speaker or the Deputy Speaker must not preside while a resolution for their removal from the office is under consideration, states that the Speaker has no role to play unless there is equality of votes. Then they may exercise a casting vote.
The respondents, led by senior advocate Harish Salve, termed Nabam Rebia academic and opposed its reference to the larger bench. Salve told the court the judgment would have applied had the former Chief Minister Thackeray gone through a trust vote, as it may have then raised some questions of law.
Senior advocate Neeraj Kishan Kaul stated that Nabam Rebia was based both on ethical and constitutional grounds as the decision on the disqualification can be challenged before the court; however, once a legislator loses his right to vote, the whole constituency suffers as the membership cannot be challenged before the court.
A legislator loses their membership in the House under Article 191(2) of the Constitution, if he is disqualified under the Tenth Schedule.
It was argued by Kaul that the disability attached to the functions of the Speaker under the Tenth Schedule must apply on the date on which the notice for his removal has been issued. It is because the Speaker may not make impartial decisions within the fourteen days’ notice period. They may thus alter the composition of the House to their own cause. This was the reasoning relied on by Justice Mishra in his judgment in Nabam Rebia.
Kaul told the bench that the interpretation of the Supreme Court in Nebam Rebia on “all the then members of the Assembly” appearing in clause (c) of Article 179 is correct. In this context, the interpretation of “all the then members of the Assembly” means that the composition of the House must not be altered.
In the Constituent Assembly debates, it was suggested that the term “all the then members of the Assembly” should be substituted with “the members of the Assembly present and voting”. However, the amendment was negatived.
Whether a petition under Article 226 or 32 lies inviting a decision on disqualification petitions by the court?
Apart from the correctness of Nabam Rebia, the three-judge bench was also concerned about whether a petition under Articles 226 or Article 32 of the Constitution lies, inviting a decision on a disqualification petition by the high courts or the Supreme Court.
In Kihoto Hollohan, the finality as to the decision of the Speaker under paragraph 6(1) of the Tenth Schedule was held to not exclude the jurisdiction of judicial review by courts. This paragraph states that the decision of the Speaker on disqualification petitions shall be final but open to judicial review. However, judicial review should not cover any stage prior to the making of a decision by the Speaker.
The only permissible interlocutory interference is when there has been a case of interim disqualifications, which means disqualification per se and which may have grave, immediate and irreversible repercussions and consequences.
So, as per this judgment, the petitions under Articles 32 or 226 lie, but only when the Speaker has decided on these petitions, and only when the decision of the Speaker has led to infirmities based on violations of constitutional mandates, male fides, non-compliance with rules of natural justice and perversity.
Can the court hold if a member is ‘deemed’ to be disqualified, by virtue of their actions, if the Speaker has not decided upon it?
During the hearing of the instant petitions before the former CJI Ramana, and Justices Murari and Kohli, Salve had argued that there is no per se illegality principle in the Tenth Schedule. This means that it cannot be deemed that if a legislator has quit the party voluntarily, then they stand disqualified under paragraph 2(1) of the Tenth Schedule unless the Speaker has decided upon it.
Paragraph 2(1)(a) and (b) state that a member of the House belonging to any political party shall be disqualified if they have voluntarily given up their membership of such political party and if they vote or abstain from voting in such House contrary to any direction issued by the political party without obtaining permission.
In Ravi S. Nair versus Union of India (1994), a three-judge bench of the Supreme Court had interpreted that ‘voluntary’ giving up of membership can be through resignation or through any other conduct which goes against the mandate of the original political party. Moreover, resignation can be inferred from the conduct of a member.
So, actions can be implied or expressed. However, the Shinde faction claims that they cannot be disqualified as the same has not been decided by the Speaker.
The Shinde faction can only be exempted from disqualification when it is proved that this was a merger under Paragraph 4 of the Tenth Schedule. For that, as per paragraph 4(2), the merger of a political party is said to have taken place when two-thirds of the legislature party (elected members to the House) agrees to such a merger.
Previously, Paragraph 3 of the Tenth Schedule protected the legislator from disqualification where such a member and any other member of the legislature party constituted a group which had arisen as a result of a split of the original political party, and such group consisted of not less than one-third of members of such legislature party. However, this was deleted by the Constitution (Ninety First Amendment) Act, 2003.
The five-judge Constitution bench will also have to determine what is the impact of the removal of paragraph 3. According to the statement of objects and reasons of the 91st Constitutional amendment, this was deleted as it “[came] under severe criticism on account of its destabilising effect on the Government”. In fact, the Law Commission of India’s 170th Report on Reforms of the Electoral Laws, 1999, also recommended the deletion of paragraph 4 as it unnecessarily leads to complications and disputes.
The report noted: “…There can be mergers, splits and formation of new political parties but they shall not be reflected in the House. So far as the House is concerned, there shall not be splits in a political party and if any member violated paragraph 2 of the Tenth Schedule, he will stand disqualified.”
As per Achary, a legislator can only be exempted from disqualification when the original political party merges with another party and two-thirds of the legislators of the party agree to that merger. Thus, as per him, an original decision to merge can only be taken by the original political party.
Further, the two-thirds members of the legislature party who break away from the one-third should merge with another political party to be protected from disqualification. They will either get the name of that party or can form a new party to get a new name. However, the Shinde faction has claimed that they are the Shiv Sena before the ECI.
Recently, on February 17, the ECI recognised the Shinde faction as the official Shiv Sena and allowed it to use the party symbol. This issue has been elaborated on further below.
But the essential question that lies here is whether the court can decide when the Speaker has not decided upon it. As per Kihoto Hollohan, the court cannot interfere.
It said: “What is reasonable will depend on the facts of each case, but absent exceptional circumstances for which there is good reason, a period of three months from the date on which the petition is filed is the outer limit within which disqualification petitions filed before the Speaker must be decided if the constitutional objective of disqualifying persons who have infarcted the Tenth Schedule is to be adhered to.”
So, although the court has clarified what is reasonable time for deciding a disqualification petition, the issue remains complex as there are times when the petitions remain pending for more than six months, as happened in Maharashtra. In the meanwhile, a stake in the government is claimed.
Adding to the complexity, as per Achary, the new Speaker cannot decide which faction is the real Shiv Sena because they have to decide disqualification petitions based on the grounds on which the party had declared them as rebels.
Achary said“…if the evidence suggests that it is the Udhav Thackeray faction which set up the candidates in the last election, and which gave them tickets to contest the elections, the Speaker has to take that into account, to decide which is the breakaway faction.”
This also shows that there is no one answer to the question of what is the status of the proceedings of the House when the disqualification is pending. This is one of the questions to be determined by the five-judge bench. However, there is a similar question of what happens to the proceedings, if disqualification dates back to when the action was done. It should be noted that the Supreme Court in Rajendra Singh Rana versus Swami Prasad Maurya (2007) has already clarified that the disqualification dates back to when the notices were issued. It is clear that this would alter the composition of the House and membership of the defected legislators will cease.
As for the question of intra-party decisions amenable to judicial review is concerned, the same is based on a lot of interdependent factors.
What is the extent of discretion and power of the Governor to invite a person to form the government, and whether the same is amenable to judicial review?
The Governor, as per the constitutional scheme, has to take the aid and advice of the state government. That is why in Nabam Rebia, the action of the Governor to move forward in time the session of the Arunachal Legislative Assembly was held unconstitutional. A seven-judge Constitution bench of the Supreme Court in Shamsher Singh & Anr versus State of Punjab (1974) held that the Governor must act on the aid and advice of the Council of Ministers. In the context of the question, the Governor cannot technically act unless the Speaker has decided on the disqualification.
In a situation where the government has lost the majority, the Governor has to form an opinion on the same. According to Achary, the Governor has many sources to form that opinion.
In Nabam Rebia, it was held that the Governor’s actions beyond his authority would fall within the scope of judicial review.
The court in this context had observed:“The question is of the jurisdictional authority of the Governor, in the above matter. The Governor has no direct or indirect constitutionally assigned role, in the matter of removal of the Speaker (or the Deputy Speaker). The Governor is not the conscience keeper of the Legislative Assembly, in the matter of removal of the Speaker. He does not participate in any executive or legislative responsibility, as a marshal. He has no such role assigned to him, whereby he can assume the position of advising and guiding the Legislative Assembly, on the question of removal of the Speaker (or Deputy Speaker.”
It further held: “The Governor can only perform such functions, in his own discretion, as are specifically assigned to him “by or under this Constitution”, within the framework of Article 163(1), and nothing more. In our final analysis, we are satisfied in concluding, that the interjects at the hands of the Governor, in the functioning of the State Legislature, not expressly assigned to him, however bona fide, would be extraneous and without any constitutional sanction. A challenge to an action beyond the authority of the Governor, would fall within the scope of the judicial review, and would be liable to be set aside.”
What is the scope of the powers of the Election Commission of India to determine a split within a party?
Further, the court has also formulated a question on the scope of the powers of the ECI to determine a split within a party. As mentioned above, the concept of split is prohibited under the Tenth Schedule as it came under heavy criticism. As per the constitutional doctrine of colourability, something which is not allowed directly, cannot be allowed indirectly, even through a different authority.
The test of majority is based on legislative and organisational majority.
The ECI order states that the outcome of the majority test in the legislative wing clearly reflects the superiority of the majority test in favour of the Shine faction. This has been done in accordance with Paragraph 15 of the Order which states: “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.”
There were two other tests laid down in Sadiq Ali: ‘Aims and Objects’ and ‘Test of Party Constitution’. But the ECI found that only the test of majority is capable of yielding a numeral basis. It is clear that the decision is based on the purported legislative majority.
The proceedings before the ECI, which were instituted by the Shinde camp, were challenged by the Thackeray faction. However, the Supreme Court refused to put a stay on that. The ECI was faced with a unique issue here as Thackeray continued to be the President of the party. He will continue to hold that position till elections are held.
Interestingly, in 2018, the party constitution was amended, giving powers to Thackeray to appoint an office-bearer to nominate the Electoral College to elect himself. This the ECI found to be against the spirit of democracy. It asked to amend the 2018 constitution in line with the Representation of the People Act, 1951. That is why the ECI has called that the organisational majority has a non-conclusive outcome and any reliance on the test of the party constitution is undemocratic.
The Thackeray faction has been allowed the name ‘Shiv Sena (Uddhav Balasaheb Thackeray)’ and the symbol ‘Flaming Torch’, which was allotted to it per an interim order of ECI.
However, it should be noted that the ECI’s determination of this has a consequence on the sub-judice matter because it has legitimised the split in the original political party while the decision on the disqualification petitions remains pending.
The Thackeray camp has filed a Special Leave Petition challenging the order of the ECI, which will be listed before the Supreme Court on February 21.
As per Thackeray’s petition, the ECI holding that disqualification under the Tenth Schedule operates in a different sphere from the proceedings under Paragraph 15 of the Order is ignorant of the fact that the membership of the legislator ceases under Paragraph 2(1) on the grounds of defection. It has also been argued that the ECI erred in recognising that there is a split in the political party. As per Shinde’s petition before the ECI, claims were only made in regard to a split in the legislative party.
It has also been alleged that the amendments made in 2018 to the party constitution were categorically communicated to the ECI. But since its validity was not in question before the ECI, no findings should have been rendered in this regard. Moreover, it has been alleged that the ECI has ignored that the Thackeray faction enjoy an overwhelming organisational majority.
Most importantly, it has been argued that the legislators relinquished their membership when the disqualification notices were sent to them. The disqualification will relate back to that date and thus, the reasoning on which the ECI order was based, does not remain as there would then be no legislative majority.
This argument holds water since Nabam Rebia is specifically challenged on the ground that the Speaker under the cloud should not be allowed to decide on disqualification proceedings.
What happened after the ECI order?
In the meanwhile, the original Twitter handle of Shiv Sena has been changed from ShivSena to ShivSenaUBT. The name of the party’s media handle has also changed from ShivsenaComms to ShivsenaUBTComm (UDB stands for Uddhav B. Thackeray) on Twitter. Both accounts have lost their verified blue tick.
It continues to use its original name ‘ShivSena’ on its Facebook page, although the link to that page is ‘ShivsenaUBT’. Moreover, its official website with the domain name ‘shivsena.in’ has been deleted.
On the other hand, Shinde is using the Twitter handle ‘mieknathshinde‘ with the display picture of the party’s official ‘Bow & Arrow’ symbol.