Constitutional Questions on Speaker’s Discretion and Governor’s Power

In a recent legal case, the court delved into complex constitutional questions surrounding the Speaker’s discretion and the Governor’s power. The case raised crucial issues regarding the interpretation of Schedule X of the Constitution, the scope of Speaker’s authority in disqualification proceedings, and the potential for judicial review in intra-party decisions. Join us as we uncover the nuanced legal analysis conducted by the court in addressing these fundamental constitutional concerns.

Issue

• The issue revolves around the extent of discretion and power of the Governor to invite a person to form the Government.
• It questions whether such discretion is subject to judicial review.

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Analysis

• Constitution bench reference needed for gap filling exercise.
• Key question raised about Speaker/Deputy Speaker’s power to initiate disqualification proceedings when removal proceedings are underway.
• Batch of petitions raise constitutional questions on interpreting Schedule X of the Constitution, Speaker and Governor’s powers, and judicial review.
• The matter merits reference to a 5-Judge bench under Article 145(3) of the Constitution.
• Substantial questions of law raised include issues related to the interpretation of the Constitution.
• Points of law such as restrictions on a Speaker continuing with disqualification proceedings, jurisdiction of Article 226 or Article 32 petitions, deeming of disqualification without Speaker’s decision, status of House proceedings during disqualification petitions, and impact of Tenth Schedule Paragraph 3 removal are raised.
• The decision in Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly is cited.
• Issues regarding the Speaker’s power to determine Whip and leader of the house legislature party, and their interplay with the Tenth Schedule are highlighted.
• Contradictory reasoning in the Nebam Rebia case is mentioned, necessitating gap filling for upholding constitutional morality.
• The question of whether intra-party decisions are subject to judicial review is posed.

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Decision

• The papers should be placed before the Hon’ble the Chief Justice
• For appropriate orders, the papers need to be submitted immediately

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Case Title: SUBHASH DESAI Vs. PRINCIPAL SECRETARY, GOVERNOR OF MAHARASHTRA (2022 INSC 851)

Case Number: W.P.(C) No.-000493 / 2022

Click here to read/download original judgement