'Important Constitutional Issues To Be Settled' : Supreme Court Mulls Larger Bench Reference In Uddhav Thackeray-Eknath Shinde Dispute

A three-judge bench of the Supreme Court on Wednesday observed that the issues arising in the petitions filed in relation to the Shiv Sena rift may have to be referred to a larger bench.A bench comprising Chief Justice of India NV Ramana, Justice Krishna Murari and Justice Hima Kohli was hearing six petitions filed by petitioners belonging to Eknath Shinde and Uddhav Thackeray factions of Shiv Sena party in relation to disqualification proceedings, election of Speaker, recognition of party whip and floor test for Shinde Government in the Maharashtra assembly.CJI NV Ramana orally remarked during the hearing that important constitutional issues arise in the cases which may require adjudication by a larger bench." Some of the issues, I strongly feel, may require a larger bench...Some of the issues are important constitutional issues which should be settled", the CJI said.The CJI also indicated some issues which may arise : "Some of the issues, consequences of removal of para 3 (of tenth schedule) and absence of split concept, whether a minority party leader has right to disqualify party leader, these are some of the issues. If you can cull out the issues, we can decide how to proceed." However, the CJI made it clear that he is not immediately constituting the bench and the parties must first come up with the preliminary issues. "I have not passed an order for referring to larger bench, I am thinking aloud," the CJI made it clear.The matter is now listed for discussing preliminary issues on August 1. Status quo order passed by the Court on July 11, keep in abeyance the disqualification proceedings, continues to operate. The order stated,"After hearing the counsels it has been agreed that some issues may if necessary be referred to a larger bench also. Keeping in mind the same, to enable the parties to frame the issues, let them file the same preferably by next Wednesday." What transpired in Court today?At the outset today, CJI Ramana said he has some doubts regarding the consequences of the deletion of para 3 from tenth schedule, which permitted inner-party splitParagraph 3 of tenth schedule was omitted by the 91st Constitutional Amendment Act in 2003. The CJI, clarifying that he is not expressing any views and only seeks to clear his doubts, said that after removal of para 3, the concept of split is not recognised. Once there is no split, what are the consequences, he asked. Senior Advocates Kapil Sibal and Dr AM Singhvi appearing in petitions filed by Uddhav group argued that since the rebellion group violated chief whip, they are disqualified as per tenth schedule. He also submitted that the protection under para 4 of the schedule is not available to them since they did not merge with another political party. Senior Advocate Harish Salve appearing for the present Chief Minister Eknath Shinde argued that the tenth schedule does not throttle inner-party democracy. "Raising voice within party without crossing lakshman rekha is not an act of defection." he said. To the specific query put forth by the CJI, Salve submitted that there is no need to look into para 3 and that the issue is confined only to para 2, which as per him is not applicable to attract any disqualification in the present facts and circumstances. "You have to voluntarily give up party membership or violate party whip by voting against it under para 2. "Voluntarily giving up party membership" has been interpreted. If a member goes to the Governor and says opposition has to be made the government, it has been held to be voluntarily giving up membership. If after the Chief Minister resigns, and another government is sworn-in, it is not defection. Are we in a fantasy land that a man who cannot find the support of 20 MLAs should be restored as the Chief Minister? I have a right as part of inner part of democracy to raise voice against the leader. Raising the voice is not disqualification. Para 3 being deleted is a non-issue." Arguments Sibal submitted that 40 members of Shiv Sena, by their conduct, are deemed to have incurred disqualification by giving up party membership as per para 2 (disqualification on ground of defection) of tenth schedule. "By voting for a candidate put up by BJP as Speaker in violation of official whip, they have attracted disqualification." He argued that if such rebels are allowed to form the government, then every elected government can be toppled, despite the fact that there is no protection under the tenth schedule. "What happens to the verdict of the people? The schedule that has been used to prevent defection has been used to instigate defection. In other words, the tenth schedule has been turned topsy-turvy…Democracy is in danger if governments in any state can be toppled despite the bar under tenth schedule. The only protection is for merger under para 4 of tenth schedule." Singhvi submitted, "The condition in tenth schedule is that...

'Important Constitutional Issues To Be Settled' : Supreme Court Mulls Larger Bench Reference In Uddhav Thackeray-Eknath Shinde Dispute

Shruti Kakkar

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