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

Citation: [2023] 8 S.C.R. 857 · Decided: 11-05-2023 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Disposed off

Cited by 1 judgment(s) · cites 15 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
857
   [2023] 8 S.C.R. 857
857
SUBHASH DESAI
v.
PRINCIPAL SECRETARY, GOVERNOR OF MAHARASHTRA &
ORS.
(Writ Petition (C) No. 493 of 2022)
MAY 11, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI, M. R. SHAH,
KRISHNA MURARI, HIMA KOHLI AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Constitution of India: Art.191(2) – Maharashtra Legislative
Assembly Rules – r.95 – Coalition Government – Split in Political
Party – Losing Confidence of the House – Power of the Governor
to call for Floor Test – After the State elections in 2019, a coalition
government of Maha Vikas Agadi (MVA) [a post-poll alliance of
Shiv Sena, Nationalist Congress Party (NCP), Indian National
Congress (INC) and some independent MLAs] was formed in
Maharashtra, with Mr. Thackeray of Shiv Sena as the Chief Minister
– However, certain events transpired in mid-2022 which led to split
in Shiv Sena into two factions, one led by Mr. Thackeray and the
other led by Mr. Shinde – 34 Shiv Sena MLAs (of Shinde Group)
issued notice to Deputy Speaker stating that he no longer enjoyed
their support and calling upon him to move a motion for his own
removal – In the meanwhile, notices were issued by the Deputy
Speaker on petition filed by the Chief Whip of petitioners (Thackeray
Group) under Tenth Schedule to the Constitution for disqualification
of MLAs of Shinde Group – Governor, pursuant to letter addressed
by the Opposition Party, called upon the Thackeray Group to prove
majority on the floor of the House – Thackeray resigned on the
very next day and thereafter a new Govt. was formed by a coalition
consisting of BJP MLAs and rebel MLAs of Shiv Sena, with Mr.
Shinde as the Chief Minister –Discretion and power of governor to
invite a person to form the Government – Extent of – Held: 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 – The Governor had no objective
material on the basis of which he could doubt the confidence of the
A
B
C
D
E
F
G
H
858
SUPREME COURT REPORTS
[2023] 8 S.C.R.
incumbent government – The resolution on which the Governor
relied did not contain any indication that the MLAs wished to exit
from the MVA government – 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 other material before him to assess whether the
Government seemed to have lost the confidence of the House – The
34 Shiv Sena MLAs did not express their desire to withdraw support
from the MVA Government in the resolution – The floor test cannot
be used as a medium to resolve internal party disputes or intra party
disputes – 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, exercise of discretion by the Governor
in this case was not in accordance with law – 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.
Constitution of India – Art.153 – Position of Governor – In
Internal Disputes of a Political Party – Split in Political Party –
Held: The Governor is the titular head of the State Government –
He is a constitutional functionary who derives his authority from
the Constitution and 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 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.
Constitution of India: Tenth Schedule and Arts.32 & 226 –
Power and Jurisdiction of Court – To adjudicate upon
Disqualifications of Legislative Members –  Held: Disqualification
of a person for being a member of the House has drastic
consequences for the member concerned a

Excerpt shown. Read the full judgment & AI analysis in Lexace.