A five-judge Bench of the Supreme Court on December 13 said it will consider on January 10 whether the political battle between Uddhav Thackeray and Maharashtra Chief Minister Eknath Shinde over the “real” Shiv Sena needs to be referred to a larger Bench of seven judges.
On August 23, a three-judge Bench of the court had referred the dispute to a Constitution Bench of five judges.
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On Tuesday, the five-judge Bench led by Chief Justice D.Y. Chandrachud heard preliminary submissions made by both political factions, who urged the court to refer the case to a larger Bench.
The lawyers argued that the three-judge Bench had raised “important constitutional questions relating to interpretation of Tenth Schedule (anti-defection law) of the Constitution pertaining to disqualification, as well as the powers of the Speaker and the Governor and the power of judicial review”.
It had highlighted gaps in the court’s 2016 five-judge Constitution Bench judgment in the Nabam Rebia case which had related to the power of the Speaker/Deputy Speaker to initiate disqualification proceedings, when proceedings for his own removal from office had been initiated.
The 2016 judgment had held that a Speaker/Deputy Speaker should refrain from deciding the disqualification of MLAs for defection under the Tenth Schedule of the Indian Constitution while he himself was facing the prospect of removal. The 2016 judgment was meant as a safeguard against a Speaker using the disqualification proceedings of legislators for his own political ends. A Speaker, under the threat of losing his position, may choose to disqualify the MLAs to alter the composition of the House in his favour, thus securing his position at their cost. The 2016 judgment had been examining Arunachal Pradesh Speaker Nabam Rebia‘s disqualification of 14 legislators when a resolution against his own removal had been pending at the time.
The three-judge Bench, which had referred the Maharashtra case to a Constitution Bench in August this year, had framed 10 questions of law.
These included questions on the scope of the power of the Speaker to determine the Whip and the leader of the House legislature party; whether intra-party decisions were amenable to judicial review; the extent of discretion and power of the Governor to invite a person to form the government, and whether the same is amenable to judicial review; the scope of the powers of the Election Commission of India with respect to determination of a split within a party.
The Constitution Bench has also been called to decide whether the notice for removal of a Speaker restricts him from continuing with disqualification proceedings; whether a constitutional court an be approached for a decision on a disqualification petition; can a court hold that a member is “deemed” to be disqualified by virtue of his/her actions, absent a decision by the Speaker; what is the status of proceedings in the House during the pendency of disqualification petitions against the members, among others.
