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Subhash Desai v. Principal Secretary, Governor of Maharashtra

Case details and hearing information from the Constitution Bench Pendency Portal.

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Subhash Desai v. Principal Secretary, Governor of Maharashtra

This case deals with the Speaker’s power to disqualify MLAs while a motion for his removal is pending before the House.

Petitioners Arguments
A five-judge bench of the Court has already decided the specific issue in the case of Nabam Rebia v. Deputy Speaker . In that case, it was held that the Speaker cannot conduct disqualification proceedings while a motion for their own removal was pending. Therefore, no substantial question of law is pending before the Court and hence reconsideration by a larger bench is not needed.
Responders Arguments
The Nabam Rebia judgment requires reconsideration because it allows defecting MLAs to avoid disqualification proceedings by initiating a motion for removal of the Speaker.
Last Listed On
2023-10-12
Start Date
2023-05-11
Card Stage Date
2023-05-11
Review Petition No
W.P.(C) No. 493/2022
Case Status
Pending
Bench Status
To be reconstituted
Subject Matter
Constitution
Pendency
3 years, 1 month, 19 days

7 Judge Bench

Awaiting bench reconstitution

Consider As Stage Of Pendency
true

Date of institution of case

Date of reference to 5 Judge Bench

Date of reference to 7 Judge Bench

Judgment pronounced by 5 Judge Bench

In June, 2022, members of the ruling party in Maharashtra, led by Mr. Eknath Shinde, split from the party. Following this, disqualification proceedings were initiated against them on the grounds of defection . A floor test was also requested against the State government on the ground that the Chief Minister, Mr. Uddhav Thackeray, no longer enjoyed majority confidence. The dispute between the two factions came before the Supreme Court in the present case. A five-judge bench of the Court had to decide, inter-alia, whether the splitting faction could be subjected to disqualification proceedings under the 10th Schedule of the Constitution and whether the Governor’s decision of holding the floor test was legal. The bench held on 11-05-2023 that the Governor had no grounds to call for a floor test and that the Legislative Speaker would decide whether the actions of the splitting faction amounted to defection. The bench, however, referred the question of whether the Speaker can oversee disqualification proceedings while a motion for his removal is pending to a seven-judge bench.

Can the Speaker decide disqualification proceedings against MLAs under the 10th Schedule of the Constitution when a motion for his removal is pending before the House?

Article 179 of the Constitution

Article 181 of the Constitution

10th Schedule of the Constitution

Among other things, the Court stated that Nabam Rebia is in conflict with the judgement in Kihoto Hollohan v. Zachillhu because the decision in Kihoto Hollohan holds that there is no reason to doubt the independence and impartiality of the Speaker when adjudicating on proceedings under the 10th Schedule while Nabam Rebia held the opposite. In Nabam Rebia , while interpreting the phrase “all the then members” in Article 179(c) , the Court did not look at the entirety of the discussion in the Constituent Assembly regarding other provisions of the Constitution. Article 181 of the Constitution states that the Speaker will not preside over a sitting of the Legislative Assembly if a resolution for their removal is under consideration. However, Nabam Rebia did not consider whether this restriction would extend to other functions of the Speaker like overseeing disqualification proceedings.

Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly

Navigating the ‘Neutrality’ Quagmire: Unpacking Subhash Desai v. Principal Secretary and the Nabam Rebia Conundrum

Navigating the ‘Neutrality’ Quagmire: Unpacking Subhash Desai v. Principal Secretary and the Nabam Rebia Conundrum
Source Of Info
Constitutional Law Society, National Law University Odisha
Date Of Fr
2023-11-24

Shiv Sena Case : Supreme Court Refers 'Nabam Rebia' Judgment To Larger Bench; Says It Is In Conflict With 'Kihoto Hollohan’ Judgment

Shiv Sena Case : Supreme Court Refers 'Nabam Rebia' Judgment To Larger Bench; Says It Is In Conflict With 'Kihoto Hollohan’ Judgment
Source Of Info
Live Law
Date Of Fr
2023-05-11

The Speaker and the Anti-Defection Law – A critique of Nabam Rebia’s interpretation of Article 179(c)

The Speaker and the Anti-Defection Law – A critique of Nabam Rebia’s interpretation of Article 179(c)
Source Of Info
Constitutional Law and Philosophy
Date Of Fr
2023-05-08

SC allows EC to decide which faction - Uddhav or Eknath - forms ‘real’ Shiv Sena

SC allows EC to decide which faction - Uddhav or Eknath - forms ‘real’ Shiv Sena
Source Of Info
Livemint
Date Of Fr
2022-09-27

Disqualification Proceedings Against Maharashtra MLAs

Disqualification Proceedings Against Maharashtra MLAs
Source Of Info
Supreme Court Observer
Date Of Fr
2022-09-09