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SC’s Constitution Bench to take up legal issues related to Shiv Sena’s split
This will be the Constitution Bench’s first hearing of the matter after a slew of issues were referred to it by a smaller bench on August 23
A five-judge Constitution Bench of the Supreme Court will on Wednesday take up the legal issues arising out of Shiv Sena’s split and consider Maharashtra chief minister Eknath Shinde’s plea to let the Election Commission of India (ECI) decide which faction of the party is the “real” one.
This will be the Constitution Bench’s first hearing of the matter after a slew of issues were referred to it by a smaller bench on August 23. The Shinde camp on Tuesday mentioned the matter before Chief Justice of India Uday Umesh Lalit for an early hearing. It added the ECI has been unable to look into Shinde’s plea to declare his group as the “real” Shiv Sena and allot the bow and arrow symbol because of the interim stay order by the court.
The Constitution Bench comprises justices Dhananjaya Y Chandrachud, MR Shah, Krishna Murari, Hima Kohli, and PS Narasimha.
A three-judge bench in the reference order on August 23 noted the matter “raises important issues” involving the contours of disqualification proceedings and the powers of the governor and the speaker in their respective spheres.
It doubted the correctness of the 2016 judgment by another five-judge bench in the Nebam Rabia (Arunachal Pradesh disqualification) case in holding that the speaker cannot initiate disqualification proceedings when his own removal is sought.
The raft of issues framed by the three-judge bench in its order on August 23 included the question as to whether the notice of removal of the speaker restricts him from continuing the disqualification proceedings under the Tenth Schedule (anti-defection law) of the constitution.
Other issues included the maintainability of a writ petition before a high court or the Supreme Court for inviting a decision on a disqualification proceeding and whether a court can disqualify a legislator.
The bench also sought the larger bench’s decision on the sanctity of the proceedings and decisions taken in the House during the pendency of disqualification petitions against the members and after they are held to be disqualified.
The court framed a legal issue regarding the authority of the governor to invite a person to form the government and whether the same is amenable to judicial review. It also asked for a determination on the scope of the power of the speaker to determine the whip and Leader of the House of the legislative party.
The five-judge bench was also called upon to ascertain the impact of the removal of Para 3 of the Tenth Schedule, which did away with a split in a party as a defence against the disqualification of members and the scope of the powers of the ECI with respect to determining a split within a party. “Are intra-party questions amenable to judicial review?” the smaller bench asked.
The Shinde camp’s rebellion forced Uddhav Thackeray to resign as the chief minister on June 29. Shinde took over as the chief minister and proved majority on the floor of the House with the support of the Bharatiya Janata Party.
The Shinde faction has the support of a majority of the party’s legislators and has claimed to be the “real” Shiv Sena. There is a court-mandated restraint on the Maharashtra speaker against disqualifying lawmakers from either the Shinde or the Uddhav camp.
