Introduction 

• This is a landmark judgment which talks about the Tenth Schedule and the disqualification process.   
• This judgment was delivered by a 5-judge bench comprising of Justice DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narsimha. 

Facts  

• The Shiv Sena was founded in 1966 in Maharashtra.  
• In the 2019 Maharashtra Assembly elections: 
  • BJP won 106 seats 
  • Shiv Sena won 56 seats 
  • NCP won 53 seats 
  • INC won 44 seats 
• Shiv Sena, NCP, and INC formed a post-poll alliance called Maha Vikas Aghadi (MVA).  
• Uddhav Thackeray became Chief Minister in November 2019. 
• In June 2022, a split occurred in the Shiv Sena: 
  • One faction led by Uddhav Thackeray 
  • Another faction led by Eknath Shinde  
• Key events in the political crisis: 
  • Eknath Shinde and many MLAs didn't attend a party meeting called by Thackeray. 
  • Thackeray's faction removed Shinde as group leader, but Shinde's faction reaffirmed his leadership. 
  • Shinde's faction challenged the Deputy Speaker's authority. 
  • Disqualification petitions were filed against MLAs from both factions. 
  • Governor called for a floor test on June 30, 2022. 
  • Thackeray resigned as Chief Minister on June 29, 2022. 
• On June 30, 2022: 
  • Eknath Shinde became Chief Minister 
  • Devendra Fadnavis (BJP) became Deputy Chief Minister 
• On July 3-4, 2022: 
  • Rahul Narwekar (BJP) was elected as Speaker of the Assembly. 
  • Speaker recognized Shinde as Shiv Sena legislative party leader and Bharat Gogawale as chief whip. 
  • Shinde's government won the floor test.  
• Both factions issued opposing whips, leading to more disqualification petitions.  
• On October 17, 2022, the Election Commission of India granted the 'bow and arrow' symbol to Shinde's faction. 

Issues Involved

• Whether a notice for removal of a Speaker restricts them from continuing with disqualification proceedings under Tenth Schedule of the Constitution, as held by this Court in Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016)? 
• Whether a petition under Article 226 or Article 32 lies, inviting a decision on a disqualification petition by the 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 his/her 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 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 intra-party decisions amenable to judicial review? 
• 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 with respect to the determination of a split within a party? 

Observations 

• The Court came to following conclusions: 
  • The correctness of the decision in Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) is referred to a larger Bench of seven judges. 
  • 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. 
  • 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. 
  • 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. 
  • 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. 
  • 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. 
  • 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. 
  • The Governor was justified in inviting Mr. Shinde to form the government. 
  • 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 authorized 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. 

Conclusion 

• This judgment is the result of catena of issues which was the result of rift between two political parties i.e. Thackeray and Shinde factions of Shiv Sena Party in Maharashtra. 
• The Court in this case elaborately discussed the applicability of Tenth Schedule and disqualification proceedings.