The perceptive and prescient French observer Alexis de Tocqueville, who visited America in the 1830s, remarked: “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”
In light of the Supreme Court’s judgment on Thursday, May 11, in Subhash Desai vs The Principal Secretary, Governor of Maharashtra and Others, it makes sense to ask whether the political crisis in Shiv Sena stands resolved in terms of the legal principles enunciated by the court.
The Supreme Court, no doubt, is to be commended for clarifying a few cobwebs that marred the success of the Tenth Schedule to the constitution since it was enacted in 1985 to disqualify legislators on the ground of defection. But its inability to provide relief to the petitioner, despite faulting the governor and the speaker for their erroneous decisions resulting in the unseating of Udhav Thackeray’s government, is likely to be considered a disappointment.
The respondents argued before the constitution bench that Thackeray’s resignation on the eve of the trust vote is a testament to the fact that he had lost the confidence of the House. While the bench did not specifically agree with this claim, it asked the petitioners why Thackeray did not face the floor test on June 30, 2022 and instead submitted his resignation. “This court cannot quash a resignation that has been submitted voluntarily,” the bench reasoned. The bench added that had he refrained from resigning from the post of the chief minister, the court could have considered the grant of the remedy of reinstating the government headed by him.
The bench specifically relied on its interim order dated June 29, 2022, when it refused to stay the trust vote. In this order, the vacation bench of the court held that the outcome of the trust vote to be conducted on June 30, 2022 “shall be subject to the final outcome” of this batch of petitions. Since the trust vote was not held, the question of it being subject to the final outcome of these petitions does not arise, the bench reasoned on Thursday.
But the answer to the bench’s query to the petitioners regarding why Thackeray did not face the trust vote, is found in the judgment itself. In Paragraph 193, the bench explains how 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, the exercise of discretion by the governor, in this case, was not in accordance with the law, the bench held.
Therefore, to expect Thackeray to face the trust vote, which was clearly illegal, as held by the court, in order to claim relief from the court later, does not appeal to reason.
Thackeray could not have avoided facing the trust vote in the assembly, being held as a result of the illegal exercise of discretion by the governor, without resigning as the chief minister. Therefore, there were reasons to suggest that Thackeray’s resignation was not voluntary, even though he himself did not specifically claim this defence.
Madhya Pradesh case
In Ms X vs Registrar General, High Court of Madhya Pradesh, the petitioner was a former woman judicial officer who sought her reinstatement, even though she had resigned following an inquiry into her allegations of sexual harassment against a Madhya Pradesh high court judge.
A three-member Inquiry Committee appointed by the Rajya Sabha chairperson had given a clean chit to the judge, but noted that her resignation from her post of additional district judge was due to “unbearable circumstances having no other option”. The committee had also opined that she must be reinstated since her resignation was not voluntary. In her plea before the Supreme Court, she pleaded to consider her resignation as amounting to constructive dismissal.
She contended before the Supreme Court that her resignation was an outcome of the circumstances in which she had no other option but to tender her resignation and as such, was not a resignation in law, but a forced resignation, which amounted to constructive discharge.
On behalf of the respondent, solicitor general Tushar Mehta told the Supreme Court that “coercion resulting into resignation” is a concept which was developed in Western countries with regard to labour jurisprudence, and that in any case, such reliefs can be granted only when such a fact is duly established by leading evidence.
Mehta added that the only contention of the petitioner with regard to coercion is that she had to resign on account of a midterm transfer order. He submitted that a transfer is an incidence of service. He argued that a midterm transfer could not be said to be “coercion” so as to force a person to resign from the service. He submitted that for establishing a case of coercion, it will be necessary for a person to establish, by leading cogent evidence, that not only unbearable pressure was built but such pressure was intended not just to trouble an employee or to victimise an employee but to ensure that she quits the job. He pointed out that neither such circumstances were pleaded nor asserted by the petitioner.
Mehta also contended that judicial officers are trained to be independent, fearless, non-impulsive and to act in accordance with the law and as such, the concept which applies to a workman cannot be applied to a judicial officer.
Mehta argued that her resignation was voluntary, and an impulsive decision to resign only on account of midterm transfer. He submitted that to hold that midterm transfer would amount to coercion resulting in resignation would be catastrophic. According to him, such a plea would not be available to a judicial officer who is discharging the sovereign function of dispensing justice and who is trained to be independent, fearless, non-impulsive and to act in accordance with the law.
The bench held in this case that for considering whether the resignation in the present matter could be construed as voluntary or not, the resignation could not be considered in isolation, but all the attendant circumstances would have to be taken into consideration. In the peculiar facts and circumstances of the case, the court held that the petitioner’s resignation could not be construed to be voluntary. “Though, it may not be possible to observe that the petitioner was forced to resign, however, the circumstances enumerated hereinabove, would clearly reveal that they were such, that out of frustration, the petitioner was left with no other alternative,” the Supreme Court held.
No doubt, the court held in this case that the judgment must be read as applicable to the particular facts, proved or assumed to be proved. However, it reminded the dictum that law is supreme and no one is above law. Declaring that the petitioner’s resignation from the post of additional district and sessions judge, Gwalior could not be construed to be voluntary, the court quashed and set aside the order passed by the respondents accepting the resignation of the petitioner. The court thus directed the respondents to reinstate the petitioner forthwith.
In Subhash Desai, the petitioners argued that but for the interim order of the Supreme Court, the disqualification would have followed, that Thackeray would not have resigned and that he would have survived the trust vote. More important, they contended that Thackeray’s resignation on June 29, 2022 could not dilute the illegality of the action of the governor in directing a trust vote. Ironically, however, they did not argue that his resignation was involuntary. This led the bench to merely record a finding that Thackeray’s resignation was voluntary, without elaborating the reasons why and how it found so.
Dubious interim orders
In its judgment on Thursday, the constitution bench justified the court’s vacation bench’s interim order on June 27, 2022 by suggesting that it did not injunct the deputy speaker from proceeding with the hearing of the cases under the Tenth Schedule. “This court merely extended the time for filing a written statement till July 12 2022, which goes to show that this court intended that the proceedings must go on,” it pointed out.
The bench reasoned that the reason why the deputy speaker did not proceed with the hearing on the disqualification of rebel MLAs is completely attributable to events that happened thereafter, thus completely disowning any responsibility for them. The bench was oblivious to the fact that it was the interim order by the bench which led to the supervening events, culminating in the unseating of Thackeray.
The legal scholar and Supreme Court advocate Gautam Bhatia has not only challenged this claim with regard to the June 27, 2022 order but has pointed out that the vacation bench’s refusal to stay on June 29, 2022 the floor test on June 30, 2022 was equally erroneous.
The bench devoted a considerable portion of its judgment to the discussion on Article 179 [c] of the constitution, as interpreted in the court’s previous decision in Nabam Rebia vs Deputy Speaker. In Nabam Rebia, the court interpreted this provision to mean that the composition and strength of the House cannot be altered once a notice of intention to move a resolution for the removal of the speaker is issued. While the court has referred this finding for reconsideration by a larger bench of seven judges, it has laid down an interim procedure to hear and decide the matter as follows:
- A Speaker can examine if the application to refrain from adjudicating proceedings under the Tenth Schedule on the ground of initiation of a motion for their removal under Article 179(c) is bonafide or intended only to evade adjudication.
- The Speaker can adjourn the proceedings under the Tenth Schedule, if the application is bona fide; Else, they can reject the plea and proceed with the hearing.
- As the decision of the Speaker relates to their jurisdiction, the bar of a quia timet action, as contemplated in Kihoto Hollohan will not apply.
Quia timet action is a common law injunction to restrain wrongful acts which are threatened or imminent but have not yet commenced.
In Kihoto Hollohan, the Supreme Court held as follows:
“Judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequences.”
The decision of the speaker, either to adjourn the proceedings under the Tenth Schedule in view of the pending proceedings under Article 179(c) or to proceed with the hearing will be subject to judicial review. As the decision of the speaker relates to their jurisdiction, the bar of a quia timet action, as contemplated in Kihoto Hollohan will not apply, the bench clarified.
Judicial review is not available at a stage prior to the decision of the speaker or chairman, save in certain exceptional circumstances as detailed in Kihoto Hollohan, the bench in Subhash Desai reasoned. In Paragraph 80, the bench held that the Supreme Court should normally refrain from deciding disqualification petitions at the first instance, having due regard to constitutional intendment.
The bench further sought to distinguish the precedent in Rajendra Singh Rana vs Swami Prasad Maurya.
In Rajendra Singh Rana, the speaker failed to decide the question of disqualification of Bahujan Samaj Party (BSP) rebels in a time-bound manner. Second, the speaker decided the issue of whether there was a split in the party without deciding whether the MLAs in question were disqualified. Third, the necessity of an expeditious decision in view of the fact that the disqualifications were not decided by the speaker for more than three years and the term of the assembly was coming to an end, persuaded the court to conclude that remanding the disqualification proceedings to the speaker would lead to them becoming infructuous.
The Subhash Desai bench, then by implication, reasoned that similar facts were missing in this case. “Even if this Court sets aside the decision of the Speaker cancelling the recognition of Sunil Prabhu (as Whip) on merits, it would not be a sufficient reason for this Court to decide the disqualification petitions”, the bench concluded, without elaborating. In Rana, the Supreme Court clearly found the conduct of the speaker in deciding the split prior to deciding the disqualifications, and in delaying the decision itself as not inspiring sufficient trust, so as to decide the disqualification petitions itself, without remanding it to the speaker.
The petitioners in Subhash Desai had a valid ground to dislodge the trust implicit in the office of the speaker, so as to challenge his fairness and objectivity. The bench, however, didn’t indicate what would have appeared as sufficient reason to it to decide the disqualification petitions itself. That the term of the assembly is coming to an end next year – the reason which tilted the scales in Rana in favour of the court’s intervention – did not appear to be relevant to the bench in Subhash Desai.
“We are also unable to accept the alternative submission of the petitioners to direct the deputy speaker to adjudicate the question of disqualification for the simple reason that the assembly has duly elected the speaker, who has been entrusted with the authority to decide the petitions under the Tenth schedule. The deputy speaker can perform the duties of the Speaker only when the office of the speaker is vacant,” the bench further reasoned.
The term ‘thereupon’ in Article 190(3) denotes that the seat becomes vacant only from such date when the Speaker decides the disqualification petition. An MLA has the right to participate in the proceedings of the House until they are disqualified, the bench held, thus justifying the conduct of the rebel MLAs in Shiv Sena in defying the whip issued by the Thackeray faction, which the bench held, represents the political party, rather than the legislature party.
Interpreting Articles 189(2) and 100(2) of the constitution, the bench held that the validity of any proceedings of the legislature shall not be questioned on the ground that it was discovered subsequently that a legislator who was not entitled to vote or sit, took part in the proceedings. The decision of the speaker does not relate back to the date when the MLA indulged in prohibitory conduct; the decision of the Speaker and the consequences of disqualification are prospective, the bench held.
Similarly, the bench held that the action of the house in electing the speaker, Rahul Narwekar, on July 3, 2022 is not invalid merely because some MLAs who participated in the election faced disqualification proceedings.
The bench clarified that the legislature party cannot set up a person as a candidate for election, and as held in Kihoto Hollohan, only the political party and not the legislature party can issue directions concerning issues of this nature. The bench made it clear that the whip and leader must be appointed by the political party.
In Kihoto Hollohan, the court recognised that political parties are central to the democratic set-up, and that the Tenth Schedule seeks to curb defections from political parties. When the anti-defection law seeks to curb defections from a political party, it is only a logical corollary to recognise that the power to appoint a whip vests with the political party.
“To hold that it is the legislature party which appoints the Whip would be to sever the figurative umbilical cord which connects a member of the House to the political party. The legislature party members cannot disconnect themselves entirely from the party which fielded them at the elections. [The Tenth Schedule] guards against precisely that outcome,” the bench held.
In Para 114, the bench held that a Whip appointed by the political party is crucial for the sustenance of TS and that the courts cannot be excluded by Article 212 from inquiring into the validity of the action of the Speaker recognising the Whip.
After holding that the decision of the speaker recognising Eknath Shinde as the leader is illegal in Paragraph 123, the bench considered it appropriate to trust the same speaker to decide the disqualification petitions, in the light of the principles laid down in the judgment, because it was bound by the court’s previous decision in Kihoto Hollohan, which merely exalted the office of the speaker, as a neutral authority, in the abstract.
In other words, extraordinary factors were present in Subhash Desai as in Rana to merit Court’s dealing with disqualification petitions, instead of remanding them to the Speaker for adjudication. But the court appears to have missed the opportunity to follow the dictum in Rana to render effective justice in Subhash Desai.