SC Refers Shiv Sena Dispute to Constitutional Bench ‘Nabam Rebia judgment needs gap filling’

Priya Gour

Published on: 24 August, 2022 at 18:56 IST

The Supreme Court bench has referred the dispute between Uddhav Thackeray and Eknath Shinde factions of Shiv Sena to a Constitution Bench. The bench comprised of Chief Justice N.V. Ramana, Justice Hima Kohli, and Justice Krishna Murari.

The bench was of the opinion that the issue regarding the power of the Speaker/Deputy Speaker to initiate disqualification proceedings when such proceedings had been initiated against him, be handled by a larger bench.

In this context, the bench was doubtful about the 2016 guidelines in the Nabam Rebia case . They directed that a Speaker cannot initiate disqualification proceedings when his removal is sought. The court found these guidelines contradictory.

The bench stated that,

The proposition of law laid down by the constitutional bench in Nabam Rebia… stands on contradictory reasons, which requires gap filling to uphold the constitutional morality. Thereby, the court has referred to a larger constitutional bench for “gap-filling exercise to be conducted.”

About The Matter:

The petition was filled by rebel Shiv Sena leader Eknath Shinde challenging the disqualification notices issued by the Deputy Speaker and a plea filed by Bharat Gogawale and 14 other Shiv Sena MLA’s. The plea requested to restrain the Deputy Speaker from taking any action on the disqualification petition until the resolution for the removal of the Deputy Speaker is decided. On June 27, the division bench of Justices Surya Kant and JB Pardiwala extended the time for the rebel MLAs to file written responses.

Recently, a petition was filed by Shiv Sena Chief Whip Sunil Prabhu challenging the Maharashtra Governor’s direction. It was issued to the Chief Minister to prove the majority of the Maha Vikas Aghadi Government.

A subsequent petition was made by Sunil Prabhu, the whip appointed by Uddhav Thackeray-led group. It sought to challenge the action of the newly elected Maharashtra Assembly Speaker where he recognised the whip nominated by the Eknath Shinde group as the Chief Whip of Shiv Sena.

Another petition was filed by 14 MLAs of the Uddhav camp in order to challenge the initiation of illegal disqualification proceedings against them under the Tenth Schedule by the newly elected Speaker.

The questions to be considered are:

  • Whether the notice of removal of the speaker shall not allow him to initiate the disqualification proceedings under Schedule X?
  • Whether a petition under Article 226 and Article 32 invites a decision on the disqualification proceeding by the High Courts or the Supreme Court as the case may be?
  • Can a court hold that a member is deemed to be disqualified?
  • What is the status of such proceedings? 
  • What is the status of proceedings that took place during the pendency of the disqualification petition?
  • What is the scope of the power of the Speaker to determine the whip and leader of house of the legislative party?
  • Are intra-party questions subjected to judicial review?
  • Is it the Authority of the governor to invite a person to form the government and whether the same is subjected to judicial review?
  • What is the scope of the powers of the Election Commission of India to bar an ex parte split within a party?

The counsel of the Uddhav group requested that the proceedings initiated by Eknath Shinde before the Election Commission of India for recognition as the official “Shiv Sena” not be allowed to proceed.

Consequently, the above questions shall be decided by a larger bench of the Supreme Court on August 25th, 2022. The Election Commission can not take any action till then.

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