Uddhav-Shinde Dispute In Shiv Sena : Supreme Court Refers Petitions To Constitution Bench; CB To Hear Plea To Stop ECI On Aug 25

The Supreme Court on Tuesday referred to a Constitution Bench the petitions filed by the rival groups of Shiv Sena in relation to the political developments in the State of Maharashtra.

A 3-judge bench comprising Chief Justice of India NV Ramana, Justice Krishna Murari and Justice Hima Kohli referred the petitions to a 5-judge bench observing that important questions of constitutional issue arise.

On a prayer made by 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 CJI agreed to post the matter before the Constitution Bench day after tomorrow to conisder the interim relief.

The Constitution Bench will take a decision on this request made by Uddhav camp day after tomorrow. Till then, the Election Commission has been asked to not take a final call.

Doubts Nabam Rebia decision

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, 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 following are the question referred :

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 bench was hearing the following petitions related to the crisis: