Uddhav vs Eknath Shinde : Supreme Court To Hear Petitions Related To Shiv Sena Rift On January 13, 2023

The Supreme Court on Tuesday posted the batch of petitions filed by both the Uddhav Thackeray faction and the Eknath Sindhe faction in relation to the political crisis in the State of Maharashtra, for directions, on 13th January, 2023. The matter was mentioned before a bench comprising CJI DY Chandrachud and Justice PS Narasimha. The matter was initially supposed to be posted for directions on 29th November 2022.

CJI Chandrachud, while hearing the mentioning today remarked that the matter could be now posted in the month of January for directions. Senior Advocate Devadatt Kamat for Uddhav faction requested the hearings to be commenced at an earlier date. However, CJI Chandrachud stated that the same would not be possible owing to the following week being a miscellaneous week in the Supreme Court. He said–

"Next week won't be possible because it will be a miscellaneous week. It will not be possible for five judges to sit in a Constitution Bench. Let us keep this for directions on 13th January 2023."

On September 27, the Constitution Bench hearing the matter had rejected the plea made by Uddhav group to restrain the Election Commission of India from deciding the  claim made by Shinde group that it is the real Shiv Sena.

Issues for consideration in the matter

The 3-judge bench comprising Chief Justice of India NV Ramana, Justice Krishna Murari and Justice Hima Kohli, that had referred the petitions to the Constitution Bench had framed the following 11 issues for its consideration -

A. Whether the notice of removal of the speaker restricts him from continuing the disqualification proceedings under Schedule X of the Indian Constitution as held by the Court in Nabam Rebia;

B. Whether a petition under Article 226 and Article 32 lies inviting a decision on a disqualification proceeding by the High Courts or the Supreme Court as the case may be;

C. Can a court hold that a member is deemed to be disqualified by virtue of his/her actions absent a decision by the Speaker?

D. What is the status of proceedings in the House during the pendency of disqualification petitions against the members?

E. If the decision of speaker that a member was incurred disqualification under the Tenth Schedule relates back to the date of the complaint, then what is the status of proceedings that took place during the pendency of the disqualification petition?

F. What is the impact of the removal of Para 3 of the Tenth Schedule? (which omitted "split" in a party as a defence against disqualification proceedings)

G. What is the scope of the power of the Speaker to determine the whip and leader of house of the legislative party?

H. What is the interplay with respect to the provisions of the Tenth Schedule?

I. Are intra-party questions amenable to judicial review? What is the scope of the same?

J. Power of the governor to invite a person to form the government and whether the same is amenable to judicial review?

K. What is the scope of the powers of Election Commission of India with respect to deter an ex parte split within a party.

Background of Petitions before the Constitution Bench

• Petition preferred by rebel Shiv Sena leader Eknath Shinde (now the Chief Minister) challenging the disqualification notices issued by the Deputy Speaker and plea filed by Bharat Gogawale and 14 other Shiv Sena MLA's seeking to restrain the Deputy Speaker from taking any action in the disqualification petition until the resolution for removal of Deputy Speaker is decided. On June 27, the division bench of Justices Surya Kant and JB Pardiwala had extended the time for the rebel MLAs to file written responses to the Deputy Speaker's disqualification notice till July 12.
• Petition filed by Shiv Sena Chief Whip Sunil Prabhu challenging the Maharashtra Governor's direction to the Chief Minister to prove majority of Maha Vikas Aghadi Government.
• Petition filed by Sunil Prabhu, the whip appointed by Uddhav Thackeray-led group, challenging the action of the newly elected Maharashtra Assembly Speaker recognizing the whip nominated by the Eknath Shinde group as the Chief Whip of Shiv Sena.
• Petition preferred by Mr. Subhash Desai, the General Secretary of the Shiv Sena assailing the decision of the Maharashtra Governor to invite Eknath Shinde to be the Chief Minister of Maharashtra and challenged the further proceedings of the State's Legislative Assembly held on 03.07.2022 and 04.07.2022 as 'illegal'.
• Petition preferred by 14 MLAs of Uddhav camp challenging the initiation of illegal disqualification proceedings against them under the Tenth Schedule by the newly elected Speaker.

Case Title: Subhash Desai v. Principal Secretary, Governor of Maharashtra And Ors. WP(C) No. 493/2022