On Wednesday, a five-judge Supreme Court Constitution Bench will address the legal concerns raised by the split in the Shiv Sena and take up Maharashtra Chief Minister Eknath Shinde’s request to allow the Election Commission of India (ECI) to determine which faction of the party is the “genuine” one.
After a number of concerns were referred to the Constitution Bench by a lesser bench on August 23, this will be the Constitution Bench’s first hearing of the case. Tuesday, the Shinde camp requested an expedited hearing before Chief Justice of India Uday Umesh Lalit. It also stated that due to the court’s interim stay order, the ECI was unable to investigate Shinde’s request to have his organisation recognised as the “genuine” Shiv Sena and awarded the bow and arrow insignia.
Justices Dhananjaya Y. Chandrachud, MR Shah, Krishna Murari, Hima Kohli, and PS Narasimha make up the Constitution Bench.
The terms of the disqualification process and the authority of the governor and speaker in their respective sectors are among the “serious issues” that the case “raises,” according to a three-judge bench in the reference ruling on August 23.
It questioned if the 2016 ruling in the Nebam Rabia (Arunachal Pradesh disqualification case) by another five-judge court, which held that the speaker cannot start disqualification procedures when his own removal is sought, was correct.
The three-judge bench’s judgement from August 23 posed a number of questions, one of which was whether the speaker’s notice of dismissal prevents him from pursuing the disqualification process under the Tenth Schedule (anti-defection statute) of the Constitution.
Other concerns were whether a court might invalidate a legislator and if a writ petition for a ruling on a disqualification procedure could be maintained before a high court or the Supreme Court.
The smaller bench also asked the larger bench to rule on the propriety of the actions and decisions made in the House both before and after the members were found ineligible for office.
The court raised a legal question about whether the governor’s right to ask someone to join the government is subject to judicial review. The question of the speaker’s authority to choose the whip and Leader of the House of the parliamentary party was also raised.
The impact of eliminating Paragraph 3 of the Tenth Schedule, which eliminated a party split as a defence against member disqualification, as well as the extent of the ECI’s powers with regard to finding a party split, were also brought before the five-judge bench. The smaller bench questioned whether judicial review was available for intra-party disputes.
Uddhav Thackeray was compelled to step down as chief minister on June 29 as a result of the Shinde camp’s uprising. With the help of the Bharatiya Janata Party, Shinde assumed the position of chief minister and won a majority on the House floor.
With the backing of the majority of the party’s lawmakers, the Shinde faction has proclaimed itself to be the “genuine” Shiv Sena. The Maharashtra speaker is prohibited by court order from dismissing lawmakers from either the Shinde or the Uddhav group.