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 decisionThe 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: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 SpeakerCase Title : Subhash Desai versus Principal Secretary, Governor of Maharashtra and others | W.P.(C) No. 493/2022 and connected casesCitation : 2022 LiveLaw (SC) 697HeadnotesConstitution of India - 10th Schedule - Anti-defection law - Supreme Court refers to Constitution Bench questions relating to Speaker's powers for disqualification proceedings- Questions referred in dispute between Uddhav Thackeray and Eknath Shinde over rift within Shiv Sena party - Prima facie doubts the law laid...

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

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