Subhash Desai case

Polity & Governance glossary

Also called: Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023), Maharashtra political crisis case · Topic: Political Parties, Party Systems and Anti-defection · NCERT: Beyond NCERT

Meaning

Subhash Desai v. Principal Secretary, Governor of Maharashtra (Constitution Bench, 11 May 2023) is the Supreme Court judgment on the Maharashtra political crisis of 2022. It held four things:

  • The political party, not its group of legislators, appoints the whip.
  • The Speaker must decide the defection cases first.
  • The Governor was wrong to call a floor test.
  • The Uddhav Thackeray government could not be brought back, because he had resigned before the vote.

It matters because it says who controls party discipline in the House under the anti-defection law. It also sets limits on when a Governor can call a floor test. And it shows how little a court can do once a government has already fallen.

Explanation

Background: the 2022 crisis in Maharashtra

  • A group of Shiv Sena MLAs led by Eknath Shinde rebelled against Chief Minister Uddhav Thackeray.
  • The rebels sent a notice of removal to the Deputy Speaker. Under Nabam Rebia (2016), a Speaker facing such a notice cannot decide disqualification petitions (requests to remove a member from the House for defection). So the cases against the rebels were frozen.
  • The MLAs were kept together away from the state, so the other side could not reach them before the vote (resort politics).
  • The Governor asked the government to prove its majority through a floor test (a vote in the Assembly to check whether the government still has a majority).
  • Uddhav Thackeray resigned without facing the floor test.
  • The Speaker then recognised the whip chosen by the Shinde group. A whip is the party's written order to its members on how to vote.

What the Court held

1. The whip belongs to the party

  • The political party appoints the whip and the party's leader in the House. The legislature party does not.
  • The political party is the full organisation outside the House. The legislature party is only the party's members sitting in the House.
  • So the Speaker was wrong to recognise the whip chosen by the Shinde group.

2. The Speaker decides first

  • Under para 6 of the Tenth Schedule, the Speaker must first decide the disqualification petitions.
  • The Court refused to decide them itself.

3. The Governor erred

  • The Governor had no objective material (solid evidence such as facts or documents) showing that the government had lost its majority.
  • A quarrel or split inside one party cannot be the reason for a floor test.

4. No restoration of the government

  • Uddhav Thackeray had resigned without facing the floor test.
  • So even though the Governor acted wrongly, the Court could not restore his government.

5. Reference to a larger bench

  • The Court sent the question of whether Nabam Rebia (2016) was correctly decided to a seven-judge bench.

Limits of the ruling

  • It did not disqualify any MLA. That decision went back to the Speaker.
  • It did not overrule Nabam Rebia. It only referred it to a larger bench.
  • It found the Governor at fault but gave no practical remedy, because the CM had already resigned.

In the Constitution and practice

Where it sits in the law

  • Tenth Schedule (the anti-defection law), added by the 52nd Amendment Act, 1985.

  • MLAs can be disqualified under Art. 191(2). MPs can be disqualified under Art. 102(2).

  • Para 2(1)(b): a member who votes or abstains against the party whip without permission is disqualified, unless the party forgives (condones) it within 15 days.

  • Subhash Desai decides whose whip counts: the political party's.

  • Para 6: the Speaker or Chairman decides disqualification cases.

  • Governor: must usually act on the advice of the state's ministers (Article 163). The Governor can act alone only in the few cases the Constitution allows. Calling a floor test is one such step, and the Court said it needs objective material.

Line of cases it follows

  • Kihoto Hollohan v. Zachillhu (1992, 3:2): upheld the Tenth Schedule.

  • When deciding these cases, the Speaker acts as a tribunal (a body that decides disputes the way a court does). Courts can review only its final order.

  • Rajendra Singh Rana (2007): a Speaker's failure to decide is open to judicial review (the power of courts to check whether a state action is lawful). In that case, the Constitution Bench decided the disqualification question itself.

  • From Kihoto Hollohan to Subhash Desai, Constitution Benches have held that the Speaker decides first [1].

What happened after the judgment

  • Speaker Rahul Narwekar ruled that the Shinde faction was the real Shiv Sena (10 January 2024).
  • He ruled that the Ajit Pawar faction was the real NCP (February 2024).
  • No MLA on either side was disqualified.

Later use

  • In Padi Kaushik Reddy v. State of Telangana (31 July 2025), the Court again refused to decide defection cases itself, following this line of Constitution Bench rulings [1].
  • Instead, it ordered the Speaker to decide the petitions against 10 BRS MLAs within three months [1].

Don't confuse with

  • Legislature party vs. political party: the legislature party is only the party's members in the House. The political party is the whole organisation. Subhash Desai gave the power to appoint the whip to the political party.
  • Nabam Rebia (2016): this case held that a Speaker facing a removal notice cannot decide disqualification petitions. Subhash Desai did not overrule it. It only referred it to a seven-judge bench.
  • Keisham Meghachandra Singh (2020): in that case the Court acted itself under Art. 142 and removed a Manipur minister when the Speaker kept delaying. In Subhash Desai, the Court refused to decide and left the matter to the Speaker.
  • Split vs. merger: the one-third split exception (para 3) was deleted by the 91st Amendment, 2003. The two-thirds merger exception (para 4) still exists. The Court did not treat a split inside the Shiv Sena as a ground for a floor test, or as a defence.

Prelims Hooks

  • Subhash Desai (Constitution Bench, 11 May 2023): the political party, not the legislature party, appoints the whip.
  • The case referred Nabam Rebia (2016) to a seven-judge bench. It did not overrule it.
  • Governor: erred in calling a floor test without objective material. A split inside a party is no ground for a floor test.
  • Trap: the Governor's act was held wrong, yet the Uddhav Thackeray government was not restored, because he had resigned before the floor test.
  • Who decides disqualification under para 6, Tenth Schedule? The Speaker, not the Supreme Court, as held in this case.
  • What followed: Speaker Narwekar held the Shinde faction to be the real Shiv Sena (10 January 2024) and the Ajit Pawar faction to be the real NCP (February 2024). No MLA was disqualified.

Mains Points

  • The Speaker as judge is still the weak point.
  • The Court sent the case back to the Speaker, who is a member of the majority party. That Speaker finally disqualified no one.
  • This repeats the concern J.S. Verma J. raised in his Kihoto Hollohan dissent: a Speaker cannot be a neutral judge.

  • Reform options:

    • The President or Governor decides on the Election Commission's advice (Dinesh Goswami Committee, 1990 [2]; 2nd ARC, 2007).
    • A permanent tribunal headed by a retired SC judge, as suggested in Keisham [2].

  • The Governor's discretion needs clear rules.

  • The Court held that the floor test was wrongly called. But it could not undo the harm once the CM had resigned.

  • This shows that courts can only correct things after the event. Written rules on when a Governor may call a floor test, as the Sarkaria and Punchhi Commissions recommended, would prevent the harm in the first place.

  • Party discipline and internal democracy.

  • Giving the party organisation the power to appoint the whip protects party discipline against legislators who break away.
  • But parties are not internally democratic. So the ruling can also concentrate power in party leaders.
  • It should be paired with these reforms:
    • Limit whips to confidence motions and money bills (bills only about taxes, borrowing or spending).
    • Delete the merger exception (Law Commission, 170th Report, 1999 [2]).
    • Do not count a defector's vote when deciding whether a government survives (NCRWC, 2002 [2]).

Related concepts

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Sources

  1. 1Padi Kaushik Reddy v. State of Telangana, 2025 INSC 912, judgment dated 31 July 2025, Supreme Court of Indiaapi.sci.gov.in · tier 1
  2. 2PRS Legislative Research, "The Anti-Defection Law That Does Not Aid Stability"prsindia.org · tier 1