[Maharashtra Political Crisis] Constitution Bench Of Supreme Court Posted The Matter For Directions On 29th November, 2022

Upon the agreement of Counsel representing all the concerned parties on certain procedural directions, the 5-Judge Bench comprising Justices D.Y. Chandrachud, M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha recorded the following directions for effective hearing of the clutch of petitions.

(1)Counsels shall file joint compilation of Written submissions, precedents, any other documentary material; common index shall be prepared…

(2) the above exercise shall be carried out within a period of 4 weeks.

The Constitution Bench added -

"It has been agreed that the Counsels will meet and formulate the issues which will arise for consideration or deciding the reference before the Constitution Bench. The proceeding shall be listed for directions after 4 weeks."

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.

However, during the hearing on Tuesday, Justice Chandrachud asked that the Counsels representing the parties hold a meeting to formulate the questions of law that require consideration of the Constitution Bench. He further indicated that the list of issues should not be too long. The Judge said -

"Ideally, let's not have something like 25 issues."

He also asked the Counsels to decide the issues that each one of them would address, so that there is no overlap.

Justice Chandrachud emphasised on filing of written submissions saying -

"Written submission is of great assistance for us, especially when there is a time lapse between hearing the submissions and writing the judgment."

He asked two junior advocates from both sides to take up the task of compilation of the documents in soft copies and distribution of the same to all the concerned Counsels.

Agreeing to the directions of the Bench, the Counsels apprised it that 3 weeks would be required for all parties to make their submissions.

Brief 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]

Counsels representing Eknath Shinde: Advocate, Mr. Chirag Shah along with Mr. Utsav Trivedi, Mr. Himanshu Sachdeva and Ms. Manini Roy of M/s. TAS Law (AoR)

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