Subhash Desai Vs Principal Secretary, Governor of Maharashtra & Ors. (Supreme Court of India)
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 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
197. Article 164(1B) of the Constitution is reproduced below:
“ 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 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 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)
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.
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 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 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).
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.
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 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 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.
Aggrieved by the order of the Speaker, the disqualified MLAs approached this Court under Article 32 of the Constitution. The MLAs 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 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 Speaker in this regard. At this point we may allude to the case of D. Sanjeevayya v. Election Tribunal [D. Sanjeevayya v. Election 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.”
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)
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 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
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. 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.
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.
Conclusions
In view of the discussion above, the following are our conclusions:
a. The correctness of the decision in Nabam Rebia (supra) 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 Court to adjudicate disqualification petitions. The Speaker 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 respectively;
f. While adjudicating petitions under Paragraph 15 of the Symbols Order, the ECI may apply a test that is best suited to the facts and circumstances of the case before it;
g. The effect of the deletion of Paragraph 3 of the Tenth Schedule is that the defence of ‘split’ is no longer available to members facing disqualification proceedings. The Speaker would prima facie determine who the political party is for the purpose of adjudicating disqualification petitions under Paragraph 2(1) of the Tenth Schedule, where two or more factions claim to be that political party;
h. The Governor was not justified in calling upon Mr. Thackeray to prove his majority on the floor of the House because he did not have reasons based on objective material before him, to reach the conclusion that Mr. Thackeray had lost the confidence of the House. However, the status quo ante cannot be restored because Mr. Thackeray did not face the floor test and tendered his resignation; and
i. The Governor was justified in inviting Mr. Shinde to form the government.
FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER
PART A
1. The Writ Petitions instituted before this Court under Article 32 of the Constitution arise from the political imbroglio in the State Legislature of Maharashtra. A coalition consisting of the Shiv Sena, the Nationalist Congress Party,1 the Indian National Congress,2 and certain independent Members of the Legislative Assembly3 formed the government in the State of Maharashtra with Mr. Uddhav Thackeray of the Shiv Sena as the Chief Minister. Certain events transpired in mid-2022 which led to the formation of a new government by a coalition consisting of a faction of the Shiv Sena (which claimed to the “real” Shiv Sena), the Bharatiya Janata Party,4 and certain independent MLAs. Mr. Eknath Shinde of the Shiv Sena helmed the second government as its Chief Minister. The change in the composition of the government in the State of Maharashtra was precipitated by the emergence of two factions within the Shiv Sena. Various issues arising from these events fall to be determined by this Court in these proceedings. A detailed narration of the factual background follows.
A. Factual Background
i. A change in the government of the State of Maharashtra
2. The Shiv Sena was founded in 1966 in Maharashtra. The Election Commission of India5 recognizes the Shiv Sena as a state political party. The organizational election of the party for the term extending from January 2018 to January 2023 was held on 23 January 2018 and Mr. Uddhav Thackeray was elected as the Party President or the ‘Paksh Pramukh.’
3. The elections to the 14th Legislative Assembly of Maharashtra were held in October 2019. Of a total of two hundred and eighty-eight seats, the BJP returned candidates in one hundred and six seats, the Shiv Sena in fifty-six seats, the NCP in fifty-three seats, and the INC in forty-four seats. Independent candidates were returned in thirteen constituencies and the remaining constituencies returned candidates from various other parties. In November 2019, the Shiv Sena, the NCP, and the INC formed a post-poll alliance which came to be known as the Maha Vikas Aghadi.6 The MVA successfully staked a claim to form the government in Maharashtra and Mr. Uddhav Thackeray was sworn in as the Chief Minister. On 25 November 2019, pursuant to a meeting chaired by Mr. Uddhav Thackeray, all fifty-six MLAs of the Shiv Sena issued a communication to the Speaker of the Maharashtra Legislative Assembly intimating him that Mr. Eknath Shinde was appointed as the Group Leader of the Shiv Sena Legislature Party7 and that Mr. Sunil Prabhu was appointed as the Chief Whip of the SSLP.
4. The MVA continued to govern the State of Maharashtra until June 2022, when news reports revealed that some MLAs who belonged to the Shiv Sena were meeting with leaders of the BJP. At this time, the office of the Speaker lay vacant, and the functions of the Speaker were being discharged by the Deputy Speaker, Mr. Narhari Zirwal.
5. The events which followed indicate that the SSLP fractured into two factions: one led by the then Chief Minister, Mr. Uddhav Thackeray, and the other led by the Group Leader of the SSLP, Mr. Eknath Shinde. Each faction claimed to represent the “real” political party and passed various resolutions pertaining to the affairs of the SSLP. For ease of reference, we refer to the faction led by Mr. Thackeray as the petitioners and the faction led by Mr. Shinde as the respondents.
6. On 21 June 2022, the Chief Whip of the Shiv Sena, Mr. Sunil Prabhu, issued a whip directing all MLAs of the Shiv Sena to attend a meeting at Mr. Thackeray’s residence on the same day. Many MLAs, including the Group Leader Mr. Eknath Shinde, did not attend this meeting. The MLAs who were in attendance passed a resolution removing Mr. Eknath Shinde from the position of the Group Leader of the SSLP and appointing one Mr. Ajay Choudhari in his place. The decisions taken by way of this resolution were communicated to the Deputy Speaker on the same day, i.e., 21 June 2022. Also on the same day, the Deputy Speaker communicated his acceptance of the change in the Group Leader of the SSLP.
7. Concurrently, thirty-four MLAs of the Shiv Sena (i.e., the respondents) organized a separate meeting and passed a resolution reaffirming that Mr. Eknath Shinde “continues to be” the Group Leader of the SSLP. It was further resolved that the appointment of Mr. Sunil Prabhu as the Chief Whip was cancelled, and that Mr. Bharat Gogawale was appointed in his place. The resolution is dated 21 June 2022 and was purportedly passed in Guwahati, Assam. The petitioners claim that it was received by the Deputy Speaker only on 22 June 2022 while the respondents claim that it was sent on 21 June 2022.
8. Mr. Eknath Shinde wrote to the Deputy Speaker communicating the details of the resolution passed by the thirty-four MLAs of the Shiv Sena, by which his appointment as the Group Leader of the SSLP was reaffirmed. He requested the Deputy Speaker not to recognize Mr. Ajay Choudhari as the Group Leader in view of the resolution reaffirming his appointment. Once again, the petitioners claim that the Deputy Speaker received this communication on 22 June 2022 and the respondents aver that it was sent on 21 June 2022.
9. The same thirty-four MLAs also issued a notice to Mr. Narhari Zirwal, the Deputy Speaker, stating that he no longer enjoyed their support and calling upon him to move a motion for his removal from office. The notice was issued under Article 179(c) of the Constitution read with Rule 11 of the Maharashtra Legislative Assembly Rules 2019. The petitioners claim that this notice, too, was received by the Deputy Speaker on 22 June 2022. The respondents maintain that it was sent on the preceding day, 21 June 2022.
10. On 22 June 2022, Mr. Sunil Prabhu issued individual communications to all MLAs of the Shiv Sena, calling upon them to attend a meeting of the SSLP scheduled to take place that evening at Mr. Thackeray’s residence. The communication stated as follows:
“…failure to participate in the meeting without providing valid and adequate reasons in writing, communicated in advance to the undersigned, will result in consequential action against you under the relevant provisions of the Constitution of India.”
The meeting on 22 June 2022, too, was not attended by many MLAs of the Shiv Sena including Mr. Eknath Shinde.
11. Mr. Eknath Shinde addressed a letter to Mr. Sunil Prabhu on 22 June 2022 accusing him of misusing the letterhead of the SSLP. The letter stated that:
a. A meeting of forty-five MLAs of the Shiv Sena was held under the chairmanship of Mr. Eknath Shinde;
b. Mr. Sunil Prabhu was removed from the position of Chief Whip of the Shiv Sena;
c. Mr. Bharat Gogawale was appointed as the Chief Whip of the Shiv Sena in place of Mr. Sunil Prabhu; and
d. Mr. Sunil Prabhu did not have the authority to sign the communication dated 22 June 2022 (issued by him to all MLAs of the Shiv Sena). It was therefore not binding upon Mr. Eknath Shinde to attend the meeting scheduled to take place at Mr. Thackeray’s residence.
12. On 23 June 2022, Mr. Sunil Prabhu filed petitions under Paragraph 2(1)(a) of the Tenth Schedule to the Constitution for the disqualification of Mr. Eknath Shinde and fifteen other MLAs of the Shiv Sena. The Deputy Speaker issued notices in these disqualification petitions on 25 June 2022. The relevant portion of the order issuing notice is reproduced below:
“You are instructed to submit written submissions as per the procedure laid in the Members of Maharashtra Legislative Assembly (Disqualification on Ground of Defection) Rules 1986 by Monday, 27th June 2022 by 5.30 pm to Deputy Speaker.”
13. On 27 June 2022, the jurisdiction of this Court under Article 32 was invoked by the respondents challenging the notice issued in the disqualification petitions. This Court passed an interim order on the same day in the following terms, extending the time to respond to the disqualification petitions from 27 June 2022 to 12 July 2022:
“Meanwhile as an interim measure, the time granted by the Deputy Speaker of the Assembly to the petitioners or other similarly placed Members of the Legislative Assembly to submit their written submissions up to today by 5.30P.M., is extended till 12.07.2022.”
14. Separately, Mr. Sunil Prabhu filed petitions for the disqualification of two independent MLAs as well as one MLA of the Prahar Janshakti Party on 25 June 2022 and against twenty-two MLAs of the Shiv Sena on 27 June 2022.
15. On 28 June 2022, the then Leader of Opposition Mr. Devendra Fadnavis addressed a letter to the Governor inter alia conveying that he believed that the then Chief Minister, Mr. Thackeray, did not enjoy a majority on the floor of the House. He called upon the Governor to direct Mr. Thackeray to prove his majority on the floor of the House. Seven MLAs who were elected as independent candidates penned a similar letter to the Governor on the same day. They too requested the Governor to direct Mr. Thackeray to prove his majority on the floor of the House.
16. The Governor issued a letter to the then Chief Minister, Mr. Uddhav Thackeray on 28 June 2022, calling upon him to face a floor test on 30 June 2022. The communication specified the manner in which the trust vote was to be conducted in the following terms:
“(i) A Special session of the Maharashtra Vidhan Sabha be summoned on 30.06.2022 at 11:00 AM with the only agenda of a trust vote against the Government.
(ii) The business of the house shall be conducted in such a way that the speeches, if any, are concluded in a short period of time and the trust vote is concluded on 30.06.2022 by 5:00 PM.
(iii) The voting will be conducted by asking Members to rise in their seats for the purpose of counting votes as contemplated under the Maharashtra Legislative Assembly Rules.
(iv) The Proceedings have to be live telecast, and appropriate arrangements are to be made to ensure the same.
(v) The entire proceedings of the trust vote shall be videographed by the Vidhan Sabha Secretariat through an independent agency and shall be submitted to me.
(vi) The aforesaid proceedings shall be started on 30.06.2022 at 11:00 AM and no case shall be same be adjourned, delayed or suspended.
(vii) Adequate arrangements shall be made for the security of the Members both outside and inside the Vidhan Bhavan to ensure smooth conducting of the floor test.”
The Governor also issued a communication dated 28 June 2022 to the Secretary, Maharashtra Legislative Assembly calling upon him to make necessary arrangements for the session of the Maharashtra Legislative Assembly at which the floor test was to be conducted.
17. On the very next day (29 June 2022), Mr. Sunil Prabhu instituted a Writ Petition before this Court for setting aside the communications dated 28 June 2022 issued by the Governor to the Chief Minister as also to the Secretary, Maharashtra Legislative Assembly, on the ground that disqualification petitions against forty-two MLAs of the Shiv Sena were pending consideration before the Deputy Speaker. This Court declined to stay the trust vote. The relevant portion of the order dated 29 June 2022 passed by this Court is reproduced below:
“8 …
(i) We do not find any ground to stay convening of the Special Session of the Maharashtra Vidhan Sabha on 30-6-2022, i.e, tomorrow at 11.00 a.m. with the only agenda of a trust vote;
(ii) The proceedings of the trust vote to be convened on 30-6-2022 shall be subject to the final outcome of the instant Writ Petition as well the Writ Petitions referred to above;
(iii) the Special Session of the Maharashtra Vidha Sabha shall be conducted in accordance with the directions as contained in the communication dated 28-6-2022 of the Governor of Maharashtra.”
Mr. Thackeray, resigned on the same day.
18. On 30 June 2022, Mr. Devendra Fadnavis wrote a letter to the Governor stating that one hundred and six MLAs from BJP and eight independent and other MLAs were extending support to Mr. Eknath Shinde to form the government. On the same day, Mr. Shinde submitted a letter to the Governor along with a resolution by thirty-nine MLAs from the SSLP unanimously resolving to authorise Mr. Shinde to initiate proceedings to form the government in the State. In said letter, Mr. Shinde claimed the support of one hundred and six BJP MLAs and seventeen independent and other MLAs. Moreover, Mr. Shinde claimed that he had the support of the majority and requested the Governor to invite him to take oath as the Chief Minister. On 30 June 2022, sixteen MLAs who were independent candidates or belonged to parties other than the Shiv Sena, BJP, INC, and NCP wrote to the Governor expressing their support for a government led by Mr. Shinde. On the same day, the Governor issued a communication to Mr. Shinde inviting him to take oath as the Chief Minister and requesting him to prove that he enjoyed the confidence of the Assembly within a period of seven days of taking over as the Chief Minister.
19. The Governor administered the oath of office to Mr. Shinde and Mr. Fadnavis on 30 June 2022 and they assumed the roles of Chief Minister and Deputy Chief Minister of Maharashtra, respectively. On the same day, Mr. Thackeray issued a letter to Mr. Shinde stating that he had been removed from the post of ‘Shiv Sena Leader’ in the organisational structure of the party. Mr. Thackeray similarly removed other MLAs of the Shiv Sena from their roles as office-bearers of the party.
ii. The election of the Speaker
20. Later that week, the Principal Secretary of the Maharashtra Legislative Assembly circulated the working order for the session which was scheduled to take place on 3 July 2022. The fifth item on the agenda reflected that the election for the post of the Speaker was to be conducted. An MLA belonging to the BJP nominated Mr. Rahul Narwekar of the BJP for this position while an MLA of the Shiv Sena (ostensibly from Mr. Thackeray’s faction) nominated Mr. Rajan Salvi of the Shiv Sena. Further, a motion of confidence for the Council of Ministers headed by the Chief Minister, Mr. Shinde, was scheduled to be moved in a session of the Assembly on 4 July 2022.
21. In view of the agenda for the sessions of the Assembly, Mr. Sunil Prabhu issued two whips on 2 July 2022. The first whip directed all MLAs of the Shiv Sena to attend the session of the Maharashtra Legislative Assembly on 4 July 2022 and vote against the motion of confidence for the Council of Ministers headed by the Chief Minister, Mr. Shinde. The second whip directed all MLAs of the Shiv Sena to attend the session of the Maharashtra Legislative Assembly on 3 July 2022 and vote for the Shiv Sena’s candidate, Mr. Rajan Salvi, in the election for the post of the Speaker.
22. The election for the post of the Speaker was conducted as scheduled and Mr. Rahul Narwekar of the BJP emerged victorious, with a total of one hundred and sixty-four votes cast in his favour. Thirty-nine MLAs of the Shiv Sena (led by Mr. Shinde) voted in favour of Mr. Rahul Narwekar’s candidature. Consequently, Mr. Sunil Prabhu instituted fresh disqualification proceedings against these MLAs under Paragraph 2(1)(b) of the Tenth Schedule to the Constitution for violating the whip issued by him.
23. After assuming office as the Speaker of the House, Mr. Rahul Narwekar cancelled the approval granted to Mr. Ajay Choudhari as the Leader of the SSLP and approved the appointment of Mr. Eknath Shinde in his place. Further, he recognized Mr. Bharat Gogawale as the Chief Whip of the Shiv Sena in place of Mr. Sunil Prabhu. These decisions of the Speaker were recorded in a communication dated 3 July 2022 issued by the Deputy Secretary of the Maharashtra Legislative Assembly, the relevant portion of which is extracted below:
“…after deliberation … Hon’ble Speaker, Maharashtra Legislative Assembly has cancelled the approval granted to Shri Ajay Choudhari as leader, Shiv Sena Legislative Party and approves & recognizes the nomination of Shri Eknath Shinde as Leader, Shiv Sena Legislative Party as per the letter dated 31st October 2019. Similarly, the proposal to nominate Shri Sunil Prabhu as Chief Whip of Shiv Sena Legislative Party is to be cancelled and to recognize the nomination of Shri Bharat Gogawale as Chief Whip of ShivSena Legislative Party has been approved and recorded in the registry.”
Mr. Bharat Gogawale issued a whip on 3 July 2022 directing all MLAs of the Shiv Sena to attend the session of the Maharashtra Legislative Assembly on 4 July 2022 and vote in favour of the motion of confidence for the Council of Ministers headed by the Chief Minister, Mr. Shinde.
24. To summarize – in June 2022, Mr. Thackeray was the Chief Minister, Mr. Shinde was the Leader of the SSLP, and Mr. Sunil Prabhu was the Chief Whip of the Shiv Sena. However, by 3 July 2022, Mr. Thackeray had resigned from the position of Chief Minister and Mr. Shinde was the Chief Minister, Mr. Ajay Choudhari was recognized as the Leader of the SSLP and subsequently replaced by Mr. Shinde, and Mr. Bharat Gogawale was recognized as the Chief Whip in place of Mr. Sunil Prabhu. Each faction continued to claim that the appointments made by them and communicated to the Speaker or the Deputy Speaker, as the case may be, were legal and valid, and that the appointments made by the opposite faction were illegal and invalid. Time and again, the question of who the “real” Shiv Sena was, arose.
25. Soon after the election of the Speaker, some MLAs of the Shiv Sena who belonged to Mr. Thackeray’s faction issued (on two different occasions) notices of intention to move a resolution for the removal of Mr. Rahul Narwekar from the office of the Speaker under Article 179(c) of the Constitution read with Rule 11 of the Maharashtra Legislative Assembly Rules 2019.
26. On 4 July 2022, a motion of confidence was moved on the floor of the Maharashtra Legislative Assembly. The House expressed its confidence in Mr. Shinde. As a consequence, Mr. Sunil Prabhu filed fresh petitions for the disqualification of thirty-nine MLAs (led by Mr. Shinde) under Paragraph 2(1)(b) of the Tenth Schedule for violating the whip issued by him on 2 July 2022. Similarly, Mr. Bharat Gogawale filed petitions for the disqualification of fourteen MLAs of the Shiv Sena (led by Mr. Thackeray) under Paragraphs 2(1)(a) and 2(1)(b) of the Tenth Schedule for violating the whip issued by him on 3 July 2022. On 8 July 2022, Mr. Rahul Narwekar issued notices in the latter set of disqualification petitions.
iii. The proceedings before the Election Commission of India
PART B
27. On 19 July 2022, Mr. Eknath Shinde filed a petition before the ECI under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order 19688 for the allotment of the symbol of the Shiv Sena, i.e., the ‘bow and arrow,’ to the faction led by him. The ECI directed the groups led by Mr. Shinde and Mr. Thackeray to furnish their written submissions and any documents in favour of their claims.
28. Thereafter, the petitioners filed two interlocutory applications for the impleadment of the ECI in WP(C) 493 of 2022 and for a stay on the proceedings before the ECI. The first of these (for impleadment of the ECI) was allowed by this Court by its order dated 27 September 2022. The interlocutory application seeking a stay was dismissed by the same order.
29. On 17 October 2022, the ECI passed an order granting the ‘bow and arrow’ symbol to the group led by Mr. Shinde.
B. Overview of the reliefs sought in the present proceedings
30. These proceedings arise from six Writ Petitions filed by members of the groups led by both Mr. Thackeray as well as Mr. Shinde. The reliefs sought in each of these petitions are captured in the table below, for ease of reference:
