Roll No.

23 (BBA LLB)

IN THE HON’BLE
SUPREME COURT OF INDIA

UNDER ARTICLE 32 OF INDIAN CONSTITUTION

WRIT PETITION (C) NO. 493/ 2022

SUBHASH DESAI
(PETITIONER)

V.

PRINCIPAL SECRETARY, GOVERNOR OF MAHARASHTRA &

ORS.
(RESPONDENTS)

MEMORIAL ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ...................................................................................................... 3

INDEX OF AUTHORITIES ....................................................................................................... 4

BOOKS ...................................................................................................................................... 4

CASES ....................................................................................................................................... 4

STATEMENT OF JURISDICTION .......................................................................................... 5

STATEMENT OF FACTS .......................................................................................................... 6

STATEMENT OF ISSUES ......................................................................................................... 8

SUMMARY OF ARGUMENTS ................................................................................................. 9

ARGUMENTS ADVANCED .................................................................................................... 11

ISSUE 1.................................................................................................................................... 11

ISSUE 2.................................................................................................................................... 12

ISSUE 3.................................................................................................................................... 14

PRAYER ..................................................................................................................................... 16

MEMORIAL ON BEHALF OF THE PETITIONER

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LIST OF ABBREVIATIONS

Anr Another
v. Versus
Hon’ble Honourable
Ors. Others

AIR All India Reporter

SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Report
§ Section
Sec. Section
HC High Court
No. Number
Edn. Edition
cd. Code
cl. Clause
& And

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INDEX OF AUTHORITIES

BOOKS

• Indian Constitutional Law by M.P. Jain

• Constitution Of India by V.N. Shukla
• Commentry of the Constitution of India By D.D. Basu
• Cases and Materials on Constitutional Law of India by P.M. Bakshi.

CASES

• Raja Ram Pal v. Hon’ble Speaker, Lok Sabha 3 SCC 184.

• Rajendra Singh Rana v. Swami Prasad Maurya (2007) 4 SCC 270
• Kihoto Hollohan v. Zachillhu And Ors. 1992 SCR (1) 686.
• S R Bommai v. Union of India 1994 SCC (3) 1.
• Rameshwar Prasad v. Union of India1 2006 (1) SCC 1

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STATEMENT OF JURISDICTION

The Petitioner, in Writ Petition (C) No 493 of 2022 has approached the Supreme Court of
India under Article 32 of Indian Constitution.
The said provision confers powers to the Hon’ble Supreme Court to pass orders to decide
the case. Therefore, this Court possesses the requisite jurisdiction to hear and determine the
issues raised.
The Respondent shall humbly accept the Hon’ble Court’s decision as final and binding and
execute it in good faith and with due diligence.

MEMORIAL ON BEHALF OF THE PETITIONER

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STATEMENT OF FACTS

1. The Election Commission of India officially recognizes Shiv Sena as a state political party.
On January 23, 2018, the party conducted its organizational elections for the term from
January 2018 to January 2023, resulting in Mr. Uddhav Thackeray being elected as the Party
President, or 'Paksh Pramukh.'
2. The elections for the 14th Maharashtra Legislative Assembly were conducted in October
2019. Prior to these elections, Shiv Sena, led by Uddhav Thackeray, entered into a pre-poll
alliance with the Bharatiya Janata Party (BJP).
3. Following the election results, Shiv Sena, under Uddhav Thackeray’s leadership, severed ties
with the BJP and played a pivotal role in the formation of the Maha Vikas Aghadi (MVA)
coalition with the Nationalist Congress Party (NCP) and Indian National Congress (INC).
4. On November 28, 2019, Uddhav Thackeray, leader of Shiv Sena and head of the MVA, was
sworn in as the Chief Minister of Maharashtra.
5. On June 21, 2022, Mr. Eknath Shinde, leader of the Shiv Sena faction within the Legislative
Assembly, along with several other MLAs, absconded to Surat and subsequently to Guwahati.
The rebel faction alleged that the MVA coalition was contrary to Shiv Sena’s ideological
stance and expressed a lack of confidence in the MVA and in Chief Minister Thackeray.
6. In response, the Thackeray faction initiated disqualification proceedings against the rebel
MLAs on June 25, 2022, alleging actions detrimental to the party’s interests. The rebel group
was given 48 hours to reply to the notice. On June 26, 2022, Mr. Shinde challenged the
disqualification proceedings by filing a petition before the Supreme Court of India.
7. On June 27, 2022, a Vacation Bench of the Supreme Court, consisting of Justices Surya Kant
and J.B. Pardiwala, issued an extraordinary order granting the rebel faction an extended
period of 12 days to respond to the disqualification notice issued by the Deputy Speaker
(Acting Speaker), contrary to the standard 7-day response period. This intervention by the
Court was atypical as it generally refrains from interfering in legislative proceedings before a
Speaker’s decision is rendered, and reviews such decisions post facto.
8. Concurrently, the Shinde faction moved for the removal of the Deputy Speaker and
approached Governor Bhagat Singh Koshyari to notify their withdrawal of support from the
MVA coalition. The Governor then directed that a floor test be conducted on June 30, 2022,
to ascertain whether the Uddhav Thackeray government still held the confidence of the
Maharashtra Legislature.

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9. The Thackeray faction contested the floor test in the Supreme Court, arguing that it should be
stayed pending the resolution of the disqualification proceedings. The Supreme Court
declined to stay the floor test on June 29, 2022, ruling that the outcome of the floor test would
be subject to the results of the ongoing legal proceedings. Subsequently, Chief Minister
Thackeray resigned before the floor test could take place.
10. On August 22, 2022, a three-judge Bench, comprising former Chief Justice of India N.V.
Ramana and Justices Krishna Murari and Hima Kohli, referred the matter to a five-judge
Constitution Bench.
11. The five-judge Constitution Bench, led by Chief Justice of India D.Y. Chandrachud,
commenced hearings on February 14, 2023. The Thackeray faction requested a referral of the
case to a seven-judge Bench. After considering the request, the Bench decided on February
17, 2023, to proceed with the case without referring it to a larger Bench.
12. On February 17, 2023, the Election Commission of India allocated the name “Shiv Sena” and
the party symbol of the bow and arrow to the faction led by Eknath Shinde.
13. On February 21, 2023, the Thackeray faction commenced arguments asserting that the Shinde
faction should be disqualified on the grounds that their actions constituted defection.

SUPREME COURT
This case has come up before the Supreme Court of India.

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STATEMENT OF ISSUES

1. Is Supreme court have authority to intervene the proceedings of Legislative assembly?

2. Whether Shinde faction can be subject to disqualification proceedings under the Tenth
Schedule?

3. Is the governor's authority to ask someone to form the government subject to judicial
review?

...

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SUMMARY OF ARGUMENTS

ISSUE 1

Is Supreme court have authority to intervene the proceedings of Legislative assembly at the
first instance?

Article 212: The House had acted within its legislative competence, under Article 212, and courts
do not have jurisdiction to inquire into the proceedings of the legislature.
Article 212 (1) states that “The validity of any proceedings in the Legislature of a State shall not be
called in question on the ground of any alleged irregularity of procedure”.

The order of this Court on 27 June 2022 is contrary to the judgment of the Constitution Bench in
Kihoto Hollohan vs. Zachillhu And Ors1. where it was held that judicial review cannot be
made available at a stage prior to the decision of the Speaker under the Tenth Schedule.

ISSUE 2

Whether Shinde faction can be subject to disqualification proceedings under the Tenth
Schedule?

In the facts of the present case, a per se case of disqualification is made out under Paragraph
2(1)(a) of the Tenth Schedule against the faction of legislators led by Mr. Eknath Shinde because
they deliberately did not attend the SSLP meetings held on 21June and 22 June of 2022 and 22
June 2022, they passed illegal resolutions appointing Mr. Shinde as the Leader of the SSLP, and
Mr. Gogawale as the Chief Whip without considering organisational assent.

1
1992 SCR (1) 686
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ISSUE 3

Is the governor's authority to ask someone to form the government subject to judicial
review?

The recommendations of the Sarkaria Commission on the order of preference in which the
Governor ought to call for the formation of the government were approved by this Court in
Rameshwar Prasad v. Union of India. The Governor did not follow this order of precedence.

The communication of the Governor dated 28 June 2022 calling for a trust vote is illegal. The
Governor’s power to call for a trust vote is not unrestrained. The Governor’s decision to call for a
floor test is subject to judicial review and is liable to be quashed if it is based on extraneous
considerations.

The majority in S R Bommai v. Union of India2 held that it would be open to the Court to
restore status quo ante before the issuance of the proclamation if the presidential proclamation
was invalid. It was also held that it would be open to the court to mould the relief while restoring
status quo ante.

2
1994 SCC (3) 1
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ARGUMENTS ADVANCED

Issue 1: Is Supreme court have authority to intervene the proceedings of Legislative

assembly at the first instance?

1. Article 212: The House had acted within its legislative competence, under Article 212, and
courts do not have jurisdiction to inquire into the proceedings of the legislature.

Article 212 (1) states that “The validity of any proceedings in the Legislature of a State
shall not be called in question on the ground of any alleged irregularity of procedure”.

2. The decision of the Speaker recognising a whip is not excluded from judicial review by the
provisions of Article 212 of the Constitution. Article 212 only precludes judicial review of
‘proceedings in the Legislature of the State’ on the ground of procedural irregularity.

This Court in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha3 has held that Article 212
does not exclude judicial review on the grounds of substantive or gross illegality.

3. The order of this Court on 27 June 2022 extending the time granted to the respondents to
respond to the disqualification petitions created a negative injunction on the functioning of
the Speaker.

The order of this Court on 27 June 2022 is contrary to the judgment of the Constitution
Bench in Kihoto Hollohan (supra) where it was held that judicial review cannot be made
available at a stage prior to the decision of the Speaker under the Tenth Schedule.

4. The order of this Court on 29 June 2022 declining to stay the trust vote was a positive
order. The Government in the State of Maharashtra would not have changed ‘but for’ the
above orders of this Court (relied on Indore Development Authority v. Manohar Lal).

By this order, the court tilted the delicate balance of unfettered functioning of different
constitutional functionaries in their respective spheres.

3
3 SCC 184
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Issue 2: Whether Shinde faction can be subject to disqualification proceedings under

the Tenth Schedule?

1. A constitutional court, by virtue of its power under Articles 32 and 226 of the
Constitution can decide whether an MLA is disqualified under the provisions of the Tenth
Schedule. This Court has recognised this exceptional power in Rajendra Singh Rana
(Supra)4.
2. In the facts of the present case, a per se case of disqualification is made out under
Paragraph 2(1)(a) of the Tenth Schedule against the faction of legislators led by Mr.
Eknath Shinde because-

● They deliberately did not attend the SSLP meetings held on 21 and 22 June of
2022.
● On 22 June they passed illegal resolutions appointing Mr. Shinde as the Leader of
the SSLP, and Mr. Gogawale as the Chief Whip without considering
organisational assent.
● The faction led by Mr. Shinde met the Governor along with Mr. Devendra
Fadnavis, the then Leader of Opposition. The alliance of legislators of Mr.
Shinde’s faction with the BJP was against the wishes of the Shiv Sena political
party.

3. A Constitutional Court while deciding disqualification petitions must decide if a per se

case of disqualification is made out against the MLAs.
4. In the facts of the present case, a per se case of disqualification is made out under
Paragraph 2(1)(b) of the Tenth Schedule against the faction of legislators led by Mr.
Eknath Shinde. On 2 July 2022, Mr. Sunil Prabhu issued a whip for the election of the
Speaker. The faction of legislators led by Mr. Shinde violated the whip and voted in
favour of Mr. Rahul Narwekar, who was the candidate nominated by the BJP.

4
4 SCC 270
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5. Disqualification under the Tenth Schedule relates back to the date on which the MLA
engaged in the act incurring disqualification. Thus, the outcome of the proceedings on the
floor of the House which took place during the pendency of the disqualification
proceedings would depend on the decision of the Speaker on the disqualification
petitions.

6. In 2017 Janata Dal (United) leaders Sharad Yadav and Ali Anwar who are the members
of the Rajya Sabha disqualified from Rajya Sabha as they attended political rally of rival
party. The decision under Tenth Schedule of the Constitution was sought to be justified
on the basis of the argument that the two members voluntarily gave up the membership of
their party when they attended political rallies organised by rival parties. An MLA who
the Speaker holds to have voluntarily given up membership for the purpose of the Tenth
Schedule cannot initiate proceedings under Paragraph 15 of the Symbols Order because
they will no longer be a part of the political party.

7. The validity of the order of the Deputy Speaker dated 21 June 2022 was sub judice before
this Court. Further, upon his appointment, the Speaker issued notice only on the
disqualification petitions instituted by the respondents. The Speaker has behaved contrary
to the spirit of neutrality and independence. Allowing the Speaker to decide the
disqualification petition would amount to incentivising defection. Thus, this Court and
not the Speaker must decide the disqualification petition.

8. The members of the legislature party cannot claim that they represent the political party
as a defence to the disqualification petitions instituted against them. Any such faction is
only entitled to advance such a claim before the ECI in proceedings under the Symbols
Order. The members cannot indulge in conduct that is prohibited under the Tenth
Schedule until their claim is settled under the Symbols Order.

9. The decision of the ECI under Paragraph 15 of the Symbols Order will have prospective
effect. The decision of the ECI recognising one of the factions as the Shiv Sena for the
purposes of the Symbols Order cannot be applied retrospectively to the pending
disqualification petitions. Such an interpretation would also be contrary to settled law that
disqualification relates back to the date when the actions constituting defection were
committed.

MEMORIAL ON BEHALF OF THE PETITIONER

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Issue 3: Is the governor's authority to ask for floor test and someone to form the
government subject to judicial review?

1. The communication of the Governor dated 28 June 2022 calling for a trust vote is illegal.
The Governor’s power to call for a trust vote is not unrestrained. The Governor’s decision
to call for a floor test is subject to judicial review and is liable to be quashed if it is based
on extraneous considerations. The Governor’s decision to call for a floor test on 28 June
2022 was illegal because-
• The resolution of thirty-four members of the SSLP which is relied upon by the
Governor does not state that they intend to exit the MVA; and
• The Governor cannot base his satisfaction on a claim of a majority of the SSLP
against the government formed by their own political party;

2. The communication of the Governor dated 30 June 2022 calling Mr. Eknath Shinde to
take oath as the Chief Minister is unconstitutional and ought to be set aside for the
following reasons:
• The Governor calling Mr. Shinde to take oath amounts to a recognition of a split
in the Shiv Sena.
• The Governor could not have called Mr. Shinde to form the Government when a
disqualification petition was pending against him;

3. The recommendations of the Sarkaria Commission on the order of preference in which

the Governor ought to call for the formation of the government were approved by this
Court in Rameshwar Prasad v. Union of India5. The Governor did not follow this order
of precedence.

5
2006 (1) SCC 1
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4. The Governor could not have directed a trust vote when the legality of the disqualification
petitions was pending consideration. The letter of the Governor dated 28 June 2022
recognises a split in the Shiv Sena. He does not have the authority to recognise a split.

5. The majority in S R Bommai v. Union of India6 held that it would be open to the Court
to restore status quo ante before the issuance of the proclamation if the presidential
proclamation was invalid. It was held that status quo ante could be restored even if the
proclamation is approved by both the Houses of Parliament. It was also held that it would
be open to the court to mould the relief while restoring status quo ante.

6. Thus, this Court has the power to mould relief by holding that legislations passed in the
intervening period would not be invalid but other actions during the pendency of the
disqualification proceedings such as the election of the Speaker would be invalid if those
who voted for the Speaker are held to have incurred disqualification.

6
1994 SCC (3) 1
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PRAYER

Wherefore, in light of the issues raised, arguments advanced, and authorities cited, it is most
humbly prayed and implored before the Hon'ble Supreme Court of India that may be
graciously pleased to adjudge and declare that:

1. That this Hon’ble Court may be pleased to uphold the principle of separation of powers
by refraining any constitutional institution from intervening in the legislative process at
its prior stage.
2. The Hon’ble court may kindly call for the records of all pending disqualification
petitions filed against Eknath Shinde and the other MLAs led by him pending before the
speker and deputy speaker and transfer these petitions to this court under Article 142 of
constitution and decide them.
3. The Hon’ble court may kindly quash the the communication of the Governor dated 28
June 2022 calling for a trust vote and restore status quo ante.
4. Also, pass any other order that may deem fit, in the favour of PETITIONER in the light
of Justice, Equity and Good Conscience.

For this act of Kindness, the PETITIONER shall be duty bound forever pray.

Sd/-
Counsel on behalf of Petitioner

MEMORIAL ON BEHALF OF THE PETITIONER