Subhash Desai and the Maharashtra political crisis: a Constitution Bench redraws the Governor, the Speaker, the whip and the Tenth Schedule

Subhash Desai v. Principal Secretary, Governor of Maharashtra is the case in which the Supreme Court was asked to undo a State government formation. It declined to do so — but in declining, it delivered the most layered Tenth Schedule ruling since Kihoto Hollohan v. Zachillhu (1992). The five-judge Constitution Bench of Dr D.Y. Chandrachud, C.J. with M.R. Shah, M. Krishna Murari, Hima Kohli and P.S. Narasimha, JJ. delivered a unanimous judgment that simultaneously held the Governor's intervention unjustified, refused to reverse the executive outcome that intervention had produced, recalibrated the operational architecture of the Tenth Schedule, identified a doctrinal fracture between Kihoto Hollohan and Nabam Rebia v. Deputy Speaker (2016) 8 SCC 1 and remitted the fracture to a seven-judge bench. The doctrinal contribution is multi-faceted; the operational consequences continue to ripple through Maharashtra and beyond.

This editorial reads the judgment in its architecture — Governor, Speaker, whip, Election Commission, and the unresolved Nabam Rebia reference — and traces its onward life in the Maharashtra disqualification proceedings, the parallel symbol-allocation contests, and the 2024-2026 cycle of Tenth Schedule litigation.

How the crisis arrived at the Court

The Maharashtra political crisis of June 2022 was, in compressed form, a Tenth Schedule textbook problem. The Maha Vikas Aghadi — the Shiv Sena (UBT) with the Indian National Congress and the Nationalist Congress Party — had formed government in November 2019 under Chief Minister Uddhav Thackeray. By the third week of June 2022, Eknath Shinde and a group of Shiv Sena MLAs had reached Guwahati, organised themselves as a separate legislature-party formation, and issued a letter to the Governor — Bhagat Singh Koshyari — claiming that the Maha Vikas Aghadi Government no longer commanded the confidence of the House.

A cascade of disputed actions followed within days. The Deputy Speaker (in the absence of an incumbent Speaker) issued disqualification notices to sixteen Shiv Sena MLAs under paragraph 2(1)(a) of the Tenth Schedule, treating the Shinde faction's separation as voluntary giving-up of membership. The Shinde faction filed a motion of no-confidence against the Deputy Speaker. The Governor, on receipt of the dissenting MLAs' letter, called for a floor test on 30 June 2022. Uddhav Thackeray resigned on the eve of the floor test, on 29 June 2022. The Governor invited Eknath Shinde to form the next Government; Shinde was sworn in as Chief Minister on 30 June 2022 with Devendra Fadnavis as Deputy Chief Minister. The new Speaker, Rahul Narwekar, was elected on 3 July 2022 and proceeded to recognise Bharat Gogawale as the Shiv Sena Chief Whip in place of Sunil Prabhu. The Election Commission, separately, took up the symbol-allocation dispute between the two factions under paragraph 15 of the Election Symbols (Reservation and Allotment) Order 1968.

The petitions before the Supreme Court — including Subhash Desai's on behalf of the Shiv Sena (UBT) faction and a clutch of associated petitions — pressed five questions: whether the Governor's floor-test call was constitutionally justified; whether the Thackeray Government could be restored; whether the Speaker's recognition of Bharat Gogawale as Chief Whip was lawful; how the Speaker's Tenth Schedule jurisdiction interacted with the Election Commission's symbol-recognition power; and whether Nabam Rebia v. Deputy Speaker (2016) — which had held that a Speaker against whom a no-confidence motion was pending could not adjudicate Tenth Schedule disqualification petitions — was correctly decided.

The Court took up all five.

The Governor's floor-test call — Article 163 and the discipline of objective material

The first doctrinal contribution is on the limits of the Governor's discretionary power under Article 163. The Bench held that the Governor's 30 June 2022 floor-test call was unjustified because the material before the Governor was insufficient to ground a reasonable apprehension that the Thackeray Government had lost the confidence of the House.

The reasoning is institutional. The Governor's discretionary power to call for a floor test is not a roving authority. It is anchored in the constitutional architecture of responsible government — the Government continues in office on the confidence of the House, the Council of Ministers is collectively responsible to the House under Article 164, and the floor of the House is the ordinary site at which questions of confidence are tested. The Governor's intervention is appropriate only where objective material discloses that the ordinary process of confidence-determination is unable to function — for instance, where the Government itself signals loss of majority, where the House cannot be convened in time, or where the disputed facts on the floor cannot be resolved without the Governor's call.

On the facts, the only material before the Governor was a letter from thirty-four MLAs expressing discontent with the Shiv Sena leadership. The letter did not assert that the Maha Vikas Aghadi Government had been refused confidence on the floor of the House. The letter did not assert that any MLA had voted against the Government on any motion. The letter did not engage the question of party whip — only of intra-party leadership. The Court held that mere intra-party discontent, however large the number of dissenting legislators, is not a constitutional ground for the Governor to call a floor test. The Governor's role is to facilitate, not to precipitate, a constitutional crisis.

The reasoning draws on the Sarkaria Commission framework and the Punchhi Commission's consolidation of it, and it extends the Rameshwar Prasad v. Union of India (2006) line on the Governor's discretion. It is the most pointed restatement to date of the proposition that Article 163 is a structured discretion, not a free-standing one.

Why the Court did not restore the Thackeray Government

The second contribution is the Court's refusal to grant the consequential relief that the Shiv Sena (UBT) petitions had sought — restoration of the Thackeray Government. The reasoning is that Uddhav Thackeray voluntarily resigned on 29 June 2022. The resignation was not the consequence of the floor-test call; it preceded the floor test. A voluntary resignation by a Chief Minister cannot be judicially undone — the judicial review remedy operates on the constitutional act (the Governor's floor-test call) and not on the political act (the Chief Minister's resignation) that followed it. Because Thackeray resigned before the floor test could be held, the Governor's subsequent invitation to Eknath Shinde to form the next Government — once the resignation had been tendered — was justified.

The distinction is institutionally important. The Court held that the Governor's call was unjustified; it did not hold that the Governor's invitation to Shinde was unjustified. Once the incumbent Chief Minister has resigned, the Governor must invite some person to form the next Government; the person commanding the support of the largest coherent legislature-party formation is, in the ordinary case, that person. The Shinde faction's legislature-party support, on the material before the Governor at the relevant date, justified the invitation.

The result is doctrinally tidy and politically consequential. The doctrinal holding — that the Governor's intervention was constitutionally improper — is preserved. The political outcome — that the Shinde-Fadnavis Government continues in office — is also preserved. The Court does not undo elected-government outcomes that have been operationally settled by the resignation of the incumbent and the swearing-in of the successor. The doctrinal proposition stands as a forward-looking discipline on the Governor's office; the operational outcome is left to the political process.

The whip and the leader of the legislature party — appointed by the political party

The third contribution is the Court's reading of who, in the Tenth Schedule architecture, may appoint the whip and the leader of the legislature party. The Speaker, Rahul Narwekar, had recognised Bharat Gogawale as the Chief Whip of the Shiv Sena in the Maharashtra Legislative Assembly, replacing Sunil Prabhu. The Bench held the recognition illegal.

The reasoning is structural. The Tenth Schedule operates against the political party — not against the legislature party (the subset of MLAs of the political party who sit in the Assembly). Paragraph 2(1)(a) reads voluntary giving-up of membership of the political party as a disqualifying event; paragraph 2(1)(b) reads voting contrary to a direction issued by the political party as a disqualifying event. The direction at the disqualification gateway is therefore the political party's direction — communicated through the whip whom the political party has authorised. The Court held that the whip and the leader of the legislature party are accordingly appointed by the political party. The legislature party — meaning the MLAs as a cohort — does not have constitutional authority to designate its own whip in displacement of the party's choice.

The Speaker erred in recognising Bharat Gogawale. The reasoning matters beyond the facts. It addresses the recurring confusion in Tenth Schedule litigation between the political party (the registered party body) and the legislature party (the parliamentary or legislative wing of the party). The Tenth Schedule is structured on the priority of the former. The Speaker's office, in recognising whips and leaders of legislature parties, must defer to the political party's choice — and a Speaker who departs from that discipline produces a recognition that cannot survive constitutional review.

The doctrinal contribution closes a serious operational gap. Defection-engineering arrangements that produced rival whip claims at the legislature-party level had often produced legislative-record consequences that the disqualification adjudication was unable to undo. The Court's reading restores the political-party anchor of the Tenth Schedule.

The Speaker's duty to adjudicate within reasonable time

The fourth contribution is the directional discipline on the Speaker's office. The disqualification petitions filed against the sixteen Shiv Sena MLAs in June 2022 had remained pending before successive Speakers — first the Deputy Speaker, then the new Speaker Narwekar — at the date of the Constitution Bench's hearing in early 2023. The Court held that the Speaker, in his Tenth Schedule capacity, must adjudicate disqualification petitions within a reasonable time. The Bench refrained from fixing an outer time-limit but drew, with approval, on Keisham Meghachandra Singh v. Speaker, Manipur LA (2020) 5 SCC 689 — which had suggested a three-month outer limit as a working guideline.

The Bench also clarified that the Speaker's Tenth Schedule jurisdiction is exclusive — neither the Governor nor the Election Commission may adjudicate the disqualification of an MLA on Tenth Schedule grounds. The Court will, however, intervene under Article 32 or Article 226 if the Speaker's adjudication is unduly delayed or if the Speaker abdicates the jurisdiction by inaction. The intervention is procedural — directing the Speaker to decide — and does not extend to the substantive Tenth Schedule determination, which remains the Speaker's.

The Maharashtra Speaker eventually decided the pending disqualification petitions in January 2024, holding that the Shinde-led faction was the "real" Shiv Sena and declining to disqualify the sixteen MLAs. That decision is itself the subject of a separate challenge — Sunil Prabhu v. Speaker, Maharashtra LA — currently pending before the Supreme Court.

The Election Commission's symbol-recognition jurisdiction — independent and concurrent

The fifth contribution is the Bench's reading of the interaction between the Speaker's Tenth Schedule jurisdiction and the Election Commission's jurisdiction under paragraph 15 of the Election Symbols (Reservation and Allotment) Order 1968. Paragraph 15 confers on the Commission the power, when satisfied that there are rival sections or groups of a recognised political party each of whom claims to be that party, to decide which group is that party and which is not, or to decide that neither is. The Commission had taken up the symbol dispute between the Shinde and Thackeray factions in mid-2022 and had, in February 2023, awarded the Shiv Sena name and the bow-and-arrow symbol to the Shinde faction.

The Bench held that the Commission's symbol-recognition jurisdiction is independent of and concurrent with the Speaker's Tenth Schedule jurisdiction. The two jurisdictions are anchored in different statutory and constitutional sources, operate on different subject-matters (party identity for symbol-allocation purposes versus individual MLA disqualification), and produce different operational consequences. The Commission's symbol-allocation decision does not bind the Speaker on the Tenth Schedule question; the Speaker's Tenth Schedule decision does not bind the Commission on the symbol-allocation question. Each adjudicator must operate within its own jurisdiction.

The reasoning unsettles a recurring practitioner intuition — that the Commission's symbol-allocation finding (which is, in effect, a determination of which faction is the "real" party for paragraph 15 purposes) is dispositive of the Tenth Schedule question. It is not. The Court was at pains to keep the two doctrinal lines apart. The Commission's symbol-allocation power is parens patriae over the electoral-symbol architecture; the Speaker's Tenth Schedule power is sui generis legislative-discipline jurisdiction. The two may, in practice, reach different conclusions on the same set of underlying facts, and each conclusion operates only within its own statutory sphere.

The doctrinal architecture has had immediate downstream consequences. The Sharad Pawar Faction NCP v. ECI (2024) line — in which the Commission, in February 2024, awarded the NCP name and clock symbol to the Ajit Pawar faction over the Sharad Pawar faction — has been adjudicated under the same paragraph 15 architecture, with parallel Tenth Schedule disqualification proceedings before the Maharashtra Speaker producing separate determinations. The Subhash Desai framework has supplied the operational template.

Nabam Rebia — referred to seven judges

The sixth and most consequential contribution is the reference of Nabam Rebia v. Deputy Speaker (2016) 8 SCC 1 to a seven-judge Constitution Bench. Nabam Rebia had held that a Speaker against whom a no-confidence motion was pending could not adjudicate Tenth Schedule disqualification petitions while the motion was unresolved. The Constitution Bench in Subhash Desai recorded that Nabam Rebia's reasoning conflicted, in substance, with Kihoto Hollohan's premise that the Speaker — when adjudicating Tenth Schedule petitions — acts as a tribunal exercising a constitutional adjudicative function. The competence of that tribunal cannot, on the Kihoto Hollohan architecture, be displaced by the political contingency that a no-confidence motion against the Speaker has been moved.

The Bench expressly doubted Nabam Rebia and referred its correctness to a seven-judge bench. Nabam Rebia is not, in the present operational architecture, overruled. It continues to govern until the seven-judge bench rules. But the reference itself signals that the doctrinal centre is unstable — and the seven-judge bench's eventual ruling will reset the Tenth Schedule architecture on the question of when, if ever, the Speaker's competence to adjudicate may be displaced by intra-Speaker proceedings.

The seven-judge reference is pending. The bench composition recorded in the contemporaneous reports comprises Chandrachud, C.J. with S.K. Kaul, Sanjiv Khanna, B.R. Gavai, Surya Kant, J.B. Pardiwala and Manoj Misra, JJ. The reference's eventual disposition will rank, for Tenth Schedule purposes, alongside Kihoto Hollohan itself.

The doctrinal arc — Kihoto Hollohan, Nabam Rebia and Subhash Desai

The Tenth Schedule line in Indian constitutional law runs through three authorities. Kihoto Hollohan v. Zachillhu (1992) supplied the constitutional foundation — the Tenth Schedule's validity, the Speaker's tribunal status, the limited judicial review architecture, and the severability that struck down paragraph 7 alone. Nabam Rebia v. Deputy Speaker (2016) added the contested gloss that a Speaker against whom a no-confidence motion was pending could not adjudicate disqualification petitions — a gloss that Subhash Desai (2023) has now doubted and referred to seven judges. Subhash Desai itself supplies the third tier: the Governor's discretion under Article 163, the political-party anchor of the Tenth Schedule whip architecture, the Speaker's exclusive disqualification jurisdiction with a reasonable-time discipline, the Election Commission's concurrent symbol-recognition jurisdiction, and the post-resignation limits on judicial restoration.

The arc is not closed. Sunil Prabhu v. Speaker, Maharashtra LA — the challenge to the Speaker's January 2024 disqualification orders — is pending before the Supreme Court. The seven-judge Nabam Rebia reference is pending. The Sharad Pawar Faction NCP v. ECI (2024) parallel line is being worked through. The constitutional architecture that Subhash Desai drew remains the operational template, but the doctrinal lines it laid down will be tested over the 2024-26 cycle and beyond.

What the judgment did not decide

A few matters were left open or only obliquely addressed.

The contours of "objective material" for an Article 163 floor-test call. The Bench held that thirty-four MLAs' letter of intra-party discontent did not constitute sufficient material. The judgment does not catalogue what material would suffice; the question will turn on the specific factual matrix.

The interaction with Paragraph 4's merger exemption. Paragraph 4 supplies an exemption from disqualification where two-thirds of the legislature-party members agree to a merger. Subhash Desai did not engage the question because the Shinde faction had not formally claimed paragraph 4 merger protection. The April 2026 Raghav Chadha + 6 AAP MPs to BJP merger episode brings paragraph 4 squarely back to the doctrinal foreground — and the question of whether the political-party / legislature-party distinction drawn in Subhash Desai extends to a paragraph 4 analysis is now live.

The remit of post-resignation judicial intervention. The Bench held that Uddhav Thackeray's voluntary resignation foreclosed restoration. The judgment does not foreclose a hypothetical case in which a Chief Minister's resignation was itself the product of unconstitutional coercion or a vitiated constitutional process. The line between political resignation and constitutionally-vitiated resignation remains an open question.

The practitioner's take

For petitions challenging a Governor's intervention. The post-Subhash Desai rule requires the petitioner to identify the precise material before the Governor at the relevant date and to demonstrate that the material did not disclose loss of confidence in the constitutional sense. Letters of intra-party discontent, however numerous the signatories, will be inadequate unless they assert refusal of confidence on the floor or an inability of the ordinary confidence-determination process to function.

For Speakers handling Tenth Schedule petitions. The duty is to adjudicate within a reasonable time — the Keisham Meghachandra three-month guideline is the lodestar — and to defer to the political party's choice of whip and leader of legislature party. A Speaker who entertains a legislature-party-level whip recognition produces an order that will not survive review.

For Election Commission symbol-recognition contests. The Commission's paragraph 15 jurisdiction is independent. Litigants should not run the symbol-allocation contest as if it were a proxy for the Tenth Schedule contest. The two jurisdictions may produce different outcomes; each should be argued on its own jurisdictional terms.

For Tenth Schedule paragraph 4 merger claims. The April 2026 AAP Rajya Sabha merger episode has put paragraph 4 back into doctrinal play. The post-Subhash Desai architecture suggests that a paragraph 4 merger claim will require demonstration of political-party level merger, not merely a legislature-party crossing. The seven-judge Nabam Rebia reference will further shape the architecture.

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