Uddhav vs Shinde : Supreme Court Constitution Bench To Hear On Sep 27 Interim Plea To Stop ECI From Deciding "Real" Shiv Sena Claim

A 5-judge Bench comprising Justices D.Y. Chandrachud, M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha was hearing a batch of petitions filed by members of both the groups challenging the various actions of Speaker/Deputy Speaker and the Governor in relation to the political developments in Maharashtra.

When the matter was taken, Senior Advocate Neeraj Kishan Kaul, appearing for the Shinde group, submitted that the Election Commission of India cannot be prevented from taking a decision. The senior counsel also cited the urgency of the impending local body elections. He pointed out that the earlier 3-judge bench led by the then CJI NV Ramana has not passed any stay order against the ECI.

Senior Advocate Kapil Sibal, appearing for the Uddhav group, pointed out to the proceedings of August 3, where the bench had orally asked the ECI to not take any precipitative action. Sibal also referred to the order dated August 3, which granted liberty to Uddhav group to seek time, and asked ECI to consider the adjournment request having regard to the pendency of the case in Supreme Court.

Senior Advocate Dr Abhishek Manu Singhvi, also appearing for Uddhav group, submitted that disqualified members cannot approach the ECI. Senior Advocate Arvind P Datar, appearing for ECI, submitted that if there is a complaint under Symbols Order, ECI has no option but to decide e it. "Even if disqualified they will be removed from legislature not the party, that is what I had argued", Datar said. Sibal retorted by saying that disqualification is attracted on voluntary giving up of the membership of the party and not the legislature party.

The bench said that it will not decide the IA today and asked the counsels to "reserve their energy" for September 27.

"We are not passing order. We will hear you on that day. Can't you reserve your energy for that day", the bench said.

 On 23.08.2022, the 3-Judge Bench led by the then Chief Justice of India, N.V. Ramana had referred the issues arising out of the political rift in Shiv Sena to a Constitution Bench. At the request of Senior Advocate Kapil Sibal, appearing on behalf of the Uddhav camp, to restrain the Election Commission of India from deciding Eknath Shinde's claim as the official Shiv Sena party, the Bench had noted that the matter would be listed shortly and in the interim ECI was restrained from taking a definitive call on the said issue.

Yesterday, the matter was mentioned by Senior Advocate, Neeraj Kishan Kaul, representing the Eknath Shinde faction for urgent listing as the proceedings before the ECI to determine the 'real' Shiv Sena is kept in abeyance by the directions of the Apex Court. Chief Justice of India, U.U. Lalit indicated that the Constitution Bench might take up the cases related to the rift within the Shiv Sena party and the consequential political developments in the State of Maharashtra, the very next day.

Doubts Nabam Rebia decision doubted by 3-Judge Bench

The 3-judge bench expressed doubts about the law laid down in the 2016 decision in the Nabam Rebia case that a Speaker cannot initiate disqualification proceedings when his removal is sought.

"We may prima facie observe that the proposition of law laid down in Nabam Rebia stands on contradictory reasons, which require gap filling to uphold constitutional morality. As such, this question is referred to a Constitution Bench to conduct the requisite gap filling exercise".

The questions of law referred for the consideration of the Constitution Bench are as under -

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?

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

The decision to refer was taken by the 3-Judge Bench upon consideration of the issues in a following batch of petitions -

• 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