On June 21st, Shiv Sena party member Mr. Eknath Shinde,  went missing, along with several Shiv Sena MLAs. On the same day, Mr. Uddhav Thackeray called an emergency party meeting which the rebel MLAs refused to attend. The Shiv Sena removed Mr. Eknath Shinde as the Legislature-Party leader. Mr. Shinde responded claiming that he had the support of over 40 MLAs, and represented a significant portion of the party. He further said that, with a dwindling group of supporters, Mr. Thackeray was no longer the party’s chosen representative.

On June 24th, 2022, Mr. Uddhav Thackeray urged the Deputy Speaker to begin disqualification proceedings against the rebel Shiv Sena MLAs, including Mr. Eknath Shinde, for defecting from the Shiv Sena. On the same day, two independent MLAs moved a ‘no confidence’ motion against the Deputy Speaker Mr. Zirwal, stultifying his power to decide on Shinde’s disqualification.

The next day (June 25th, 2022), Mr. Shinde’s faction of the Shiv Sena challenged the disqualification proceedings before the Supreme Court on two grounds. On June 27th, 2022, a Vacation Bench of the Supreme Court comprising Justices Surya Kant and J.B. Pardiwala issued an unusual Order, staying the disqualification proceedings.

On June 28th, 2022, the Shinde faction requested the Governor of Maharashtra, Mr. Bhagat Singh Koshyari to direct a floor test in the Assembly. Mr. Koshyari agreed to conduct the floor test on June 30th, 2022. Immediately, the floor test was challenged by the Thackeray faction in the Supreme Court. After four hours of arguments, on June 29th, 2022, the Supreme Court refused to stay the floor test. Chief Minister Uddhav Thackeray resigned within the hour, making way for the Shinde faction to consolidate power.

The Thackeray faction argued that the Shinde faction’s actions—disregard for the party Whip, appointment of a new Deputy Speaker, call for a floor test, and insistence of the Shinde faction’s majority—were all acts of defection.

Nabam Rebia v Deputy Speaker (2016) Referred to a Larger Bench

In Nabam Rebia, a 5-Judge Bench led by Justice Kehar held that a Speaker may not hear or decide disqualification proceedings, after a notice of intention has been filed seeking their removal. CJI Chandrachud’s Bench referred this Judgement to a 7-Judge Bench for reconsideration. They cited three broad reasons for the reference. 

First, according to Kihoto Hollohan v Zachillhu (1992), the Court cannot interfere in the interlocutory stage of disqualification proceedings as per the Tenth Schedule. As per Nabam Rebia, disqualification proceedings would be stopped if a notice of intention to remove the Speaker was filed. This would amount to interference. 

Second, the Bench in Nabam Rebia failed to consider the possible misuse of this decision. MLAs undergoing disqualification would simply file a notice of intention against the Speaker and stop the proceedings. 

Third, disabling the speaker would take away the role of the Speaker as a Tribunal under the Tenth Schedule. It would disrupt the functioning of the Speaker, and therefore the Tribunal, in hearing disqualification proceedings. It would then create a ‘constitutional hiatus’. 

Interim Measures to Ensure the Objective of the Tenth Schedule is Maintained

The SC laid down the procedure to be followed while Nabam Rebia is being reconsidered by the SC. A Speaker facing removal may examine whether the motion of removal is done in good faith. If it is well founded, the disqualifications proceedings will be adjourned, If not, the Speaker may reject the motion and continue the disqualification proceedings. This decision of the speaker to accept or deny a motion will be subject to judicial review. 

The Supreme Court will not Decide on the Disqualification of the Rebel MLAs

Citing Kihoto Hollohan and Rajendra Singh Rana, the SC stated that the disqualification of the rebel MLA’s was entirely upto the Speaker of the House. They pointed out that the incumbent Speaker of the Maharashtra Legislative Assembly Mr. Rahul Narwekar was appointed as per procedure. The Supreme Court, therefore cannot intervene. The decision of the Speaker however falls squarely within the scope of judicial review. 

In response to the petitioners’ request to delegate this task to the Deputy Speaker, the SC clarified that the Deputy Speaker may only act in absence of the Speaker. The petitioners had sought to show the Court that Mr. Narwekar was partial and biassed, as he had removed Mr. Sunil Prabhu of the Shiv Sena as the Chief Whip. The Court stated that the Speaker is ‘expected’ to act fairly, independently, and impartially in deciding defection matters. Any indications of being biassed will be considered when the Court reviews the decisions of the Speaker, but will not review a duly appointed Speaker themselves.

Validity of Actions Taken in the House by Rebel MLAs

The SC stated that an MLA has the ‘right to participate in the proceedings of the House until they are disqualified.’ Article 189(2) of the Constitution prospectively states that no proceedings in the legislature will be considered invalid, even if it is found that one of the members that voted was ineligible to. CJI Chandrachud wrote that allowing the validity of parliamentary decisions to not be subject to a disqualification, when disqualifications are made prospectively. To subject legislative decisions to future assessments of validity would lead to chaos. 

The appointment of Mr. Rahul Narwekar as Speaker by the rebel MLAs, using appropriate procedure stands good in law. 

Appointment of New Party Leader and Chief Whip Illegal 

Laying clear distinction between legislature party and political party, the SC held that the legislature party acts as per the direction of the political party. It clarified that the Tenth Schedule, Representation of the People Act, 1951, Maharashtra Legislative Assembly (Disqualification on Ground of Defection) Rule, 1986 all indicate that the legislature party acts on the behest of the political party, and are categorically distinct. To sever the two would be to indicate that a legislator could rely on a political party to be elected, and then completely distance themselves from it. The Tenth Schedule is built on to safeguard democracy from this very outcome. The appointment of the whip and the leader of the party, therefore falls squarely within the discretion of the political party. 

However, when the Speaker made the decision to appoint Mr. Eknath Shinde as the Shiv Sena leader and Mr. Sunil Prabhu as the Chief Whip, had been made aware that the Shiv Sena had split. The Bench held that the Speaker should have attempted to identify if the resolution seeking these appointments were made by the political party. 

On Identifying the ‘Real’ Shiv Sena

On February 17th 2023, the Election Commission of India allotted the name ‘Shiv Sena’ and the party symbol of the bow and arrow to the Shinde led faction. This decision was challenged before the SC and remains undecided at the time of this Judgement. 

The SC held that the ECI cannot be asked to wait while the disqualification proceedings complete, to allot a faction of a party with the name and symbol. It clarified that the decision applies prospectively. That is, at the time of allocation, such a decision stands. If the faction is disqualified later, the remaining faction must apply for allotment of the name and symbol afresh. 

The Court clarified that the decision of the ECI had no bearing on the disqualification proceedings. Decisions in both instances consider different facts, with different purposes.