Comment on the Shiv Sena Case: (Subhash Desai v. Principal Secretary, Governor of Maharashtra And Ors. WP(C) 493/2022)


The long-awaited judgment pertaining to the rift within the Shiv Sena party between Uddhav Thackeray and Eknath Shinde groups, which led to the change in the government in Maharashtra in July 2022 was held on May 11 2023. The Shiv Sena was founded in 1966 in Maharashtra. The Election Commission of India 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.’  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.


On November 28th, 2019, Shiv Sena leader and head of the Maha Vikas Aghadi (MVA) Mr. Uddhav Thackeray was sworn in as the Chief Minister of Maharashtra. MVA is an alliance between the Shiv Sena, the Nationalist Congress Party, and the Indian National Congress.

On June 21st, 2022, Mr. Eknath Shinde, the leader of the Shiv Sena in the Legislative Assembly, went missing with a number of other Shiv Sena MLAs. The ‘rebel’ group first moved to Surat, and then to Gauhati. They claimed that the MVA alliance was against the Shiv Sena ideology and that they did not have confidence in the MVA alliance and in CM Thackeray. The Thackeray group initiated disqualification proceedings against the rebel group and sent a notice on June 25th, 2022, for acting against party interests. The rebel group was given 48 hours to respond to the notice. On June 26th, 2022, Mr. Shinde moved the Supreme Court of India to dispute the disqualification proceedings initiated against him and the other ‘rebel’ MLAs. 

On June 27th, 2022, a Vacation Bench of the SC comprising Justices Surya Kant and J.B. Pardiwala issued an unusual Order. The Bench gave the rebel group 12 days of ‘breathing time’ to respond to the disqualification notice issued on June 25th, by the Deputy Speaker (Acting Speaker). The normal time to respond to the notice of disqualification is 7 days. The Court’s intervention was unexpected. Usually, the Court does not intervene in ongoing proceedings of the House and waits for the Speaker’s decision, which it may later review. 

The Shinde group also issued notice for the Deputy Speaker’s removal from his post.  At the same time, the Shinde group also approached Governor Bhagat Singh Koshyari. They expressed their withdrawal of support for the MVA alliance. The Governor directed that a floor test be conducted on June 30th to see if the Uddhav Thackeray government still commanded the support of the Maharashtra Legislature. 

The Thackeray faction challenged the floor test before the SC in light of the pending disqualification proceedings against the rebel MLAs. However, the Court refused to stay the floor test on June 29th 2022, stating that the results of the floor test would be subject to the outcome of the hearings before the SC. Soon after the SC’s Order, CM Thackeray resigned without facing the floor test. 

On August 22nd, 2022 a 3-Judge Bench comprising former CJI N.V. Ramana and Justices Krishna Murari and Hima Kohli referred the case to a 5-Judge Constitution Bench. 

A 5-Judge Constitution Bench led by CJI D.Y. Chandrachud began hearing the case on February 14th, 2023. During this hearing, the Thackeray side requested the case to be referred to a 7-Judge Bench. After hearing the parties, the Bench on February 17th, 2023, decided to not transfer the case to a larger Bench before hearing it in detail. 

On February 17th, 2023, the Electoral Commission of India (ECI) allotted the name Shiv Sena and the party symbol of bow and arrow to Shinde’s faction. On February 21st, 2023, the Thackeray side began arguing that the Shinde faction must be disqualified as their actions amounted to defection.[1]



  1. Whether the notice of removal of the speaker restricts him from continuing the disqualification proceedings under Schedule X of the Indian Constitution and that whether a court can hold that a member is deemed to be disqualified by virtue of his/her actions absent a decision by the Speaker?
  2. What is the scope of the power of the Speaker to determine the whip and leader of house of the legislative party?
  3. Power of the governor to invite a person to form the government and whether the same is amenable to judicial review?
  4. What is the scope of the powers of Election Commission of India with respect to deter an ex parte split within a party?[2]



The bench cautioned that Governor could not have entered the internal party dispute by ordering the floor test, particularly in absence of any “objective material” to dislodge the presumption of confidence of House ingrained in a democratically elected government. It said letters by some MLAs (or even by then Leader of Opposition in this case) for a direction to the Chief Minister to prove his majority does not, taken alone, amount to a relevant reason to call for a floor test 

The Court placed strong reliance on the MP Political Crisis case, which held that the decision to call for a floor test should be based on objective material and reasons which are relevant and germane to the exercise of discretion, and not extraneous to it. The Court emphasised that the Governor should not use their discretionary power to destabilise or displace democratically elected governments. 

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 The Governor was justified in inviting Mr. Shinde to form the government. The decision in Shrimanth Balasaheb Patil 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 curingsuch 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.[3]


The SC’s decision clarified the contours of the 10th Schedule of the Constitution. Specifically, the decision addressed the powers of the Speaker, Governor and the SC itself in matters pertaining to internal dissents, splits and internal party rebellions. 

The court held that allowing the legislative wing to act independently from the political party contradicts the constitutional system of governance.Disqualification ought to be decided as per established procedures in law and the Speaker is the appropriate authority for this under the Tenth Schedule of the Constitution, which lays down the anti-defection law.

While deciding disqualification pleas, the Speaker must consider the constitution of the political party (as submitted to ECI)The Speaker should decide on pending disqualification petitions in a reasonable timeframe.The other observations include that MLAs have the right to participate in proceedings of the House regardless of the pendency of any petitions for disqualification. The significance and importance of floor test was also held.A floor test is to be conducted by the Governor only on obtaining objective material to show that the incumbent government had lost the confidence of the House.

The then Maharashtra Governor Bhagat Singh Koshyari was not justified in calling for a floor test on June 30, 2022, as he did not have objective material to show that the incumbent government had lost the confidence of the House.The Governor is not empowered to enter the political arena and play a role in inter or intra-party disputes.

            The Thackeray group had sought to restore the situation prior to June 29, 2022, but the Supreme Court ruled that it cannot reinstate the Uddhav government as he had resigned and not faced the floor test.


The important significance of the judgement is that it upholds the principles of constitutional morality and the integrity of the democratic process

[1] https://main.sci.gov.in/supremecourt/2022/20234/20234_2022_1_1502_44512_Judgement_11-May-2023.pdf

[2] https://lawwire.in/shiv-sena-case-analysis/

[3] https://www.scobserver.in/journal/understanding-the-shiv-sena-conflict/

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