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Legal Case Shots

Court judgements broken down into the case type, how the decision played out, and the lesson worth remembering, with the full judgement available as a PDF.

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Legal Case Shots is a searchable database of Supreme Court of India judgments, each broken down into the case type, the court's key holding, and a practical lesson learnt, with the full judgment available as a PDF for citation or deeper reading.

Constitutional LawSupreme Court of India

Subhash Desai vs. Principal Secretary, Governor of Maharashtra & Ors.

Not available · 2023 INSC 516Decided 11 May 2023
Not available
Dr. Dhananjaya Y. Chandrachud · M.R. Shah · Krishna Murari · Hima Kohli · Pamidighantam Sri Narasimha

Background

In mid-2022, the Shiv Sena-NCP-Congress ("Maha Vikas Aghadi") coalition government in Maharashtra, led by Chief Minister Uddhav Thackeray, faced a revolt when a large group of Shiv Sena MLAs led by Eknath Shinde broke away, each side claiming to be the "real" Shiv Sena and taking rival actions (removing/reappointing the party's Whip and Legislature-Party Leader, and seeking removal of the Deputy Speaker). Citing communications from dissenting MLAs and opposition leader Devendra Fadnavis, the Governor directed Thackeray to prove his majority through a floor test; rather than face it, Thackeray resigned, after which the Governor invited Shinde to form a new government with the BJP. Several writ petitions were filed under Article 32 challenging the Governor's actions, the Speaker's recognition of Shinde's faction's Whip, and related questions, and the case required revisiting the Court's earlier ruling in Nabam Rebia on a Speaker's power to decide disqualification petitions during a pending removal notice against him.

Decision Breakdown

The Constitution Bench held: (1) the correctness of Nabam Rebia should be examined by a larger seven-judge bench, but pending that, the Court itself would not ordinarily decide Tenth Schedule disqualification petitions in the first instance: that is for the Speaker to do within a reasonable time; (2) an MLA facing a disqualification petition may still participate in House proceedings, and such proceedings are not automatically invalid pending that petition's outcome; (3) it is the political party, not the "legislature party," that has the power to appoint the Whip and Leader, so the Deputy Speaker's recognition of the Shinde-faction's whip (Bharat Gogawale) on 3 July 2022 was contrary to law, and the Speaker must instead recognise office-holders duly authorised under the Shiv Sena's party constitution; (4) crucially, the Governor was not justified in calling for a floor test, because he lacked objective material showing Thackeray had actually lost majority support: mere dissent by some MLAs, their request for restored security, or a rival faction's letters were not sufficient grounds; (5) despite this finding, the Court declined to restore the earlier Thackeray-led government, because he had voluntarily resigned before facing the floor test rather than being defeated in it, and courts cannot undo a voluntary resignation; and (6) the Governor was nonetheless justified in inviting Shinde to form the government once Thackeray resigned, and Shinde's appointment as Chief Minister was not barred by Article 164(1B) since no disqualification against him had been adjudicated by the Speaker.

Lesson Learnt

A Governor's power to order a floor test is not unlimited discretion. It requires objective, verifiable material showing an actual loss of majority, and cannot be invoked merely because a faction of a ruling party expresses discontent; but this legal safeguard cannot revive a government whose leader chose to resign rather than face that test, illustrating how procedural choices by political actors can have irreversible constitutional consequences even where an error by another authority is found.

Official source (sci.gov.in)View Judgment (PDF)
Subhash Desai vs. Principal Secretary, Governor of Maharashtra & Ors. – Legal Case Shots | LegalAware