Shiv Sena Rift | Supreme Court Constitution Bench Lists Matter On 14th February 2023

A constitution bench of the Supreme Court has listed the pleas concerning the constitutional issues arising out of the rift within Shiv Sena party between Eknath Shinde and Uddhav Thackeray groups on 14th February 2023. The matter was listed before a bench comprising Chief Justice of India D.Y. Chandrachud, Justices M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha.

At the outset, Senior Advocate Kapil Sibal apprised the bench that he had earlier indicated that he would want to argue on the correctness of Nabam Rebia judgment and the need for the matter to be referred to a seven judge bench. In the last hearing, Senior Advocate Sibal, representing the Uddhav Thackeray group, had submitted that the matter needed to be referred to a 7-judge bench, to consider the correctness of the 2016 judgment delivered by the Constitution Bench in Nabam Rebia versus Deputy Speaker. In Nabam Rebia, a 5-judge bench ruled that a Speaker cannot initiate disqualification proceedings when a resolution seeking his removal is pending. CJI Chandrachud had stated that it was for the 5-judge bench to decide whether to refer the matter to the 7-judge bench.

The bench stated that it would hear the same and the matter is now listed for 14th February 2023. CJI DY Chandrachud remarked–

"We can start the Maharashtra matter on 14th Feb and take Assam matter after that."

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

A. 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.

B. 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.

C. 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.

D. 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'.

E. 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.

Counsels appearing for Mr. Eknath Shinde: Mr. Harish Salve, Mr. Neeraj Kishan Kaul, Mr. Mahesh Jethmalani, Mr. Maninder Singh, Mr. Sidharth Bhatnagar and Ms. Malvika Trivedi, Senior Advocates along with Mr. Chirag Shah, Mr. Utsav Trivedi, Mr. Himanshu Sachdeva and Ms. Manini Roy.

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

Click Here To Read/Download Order