Sena control: SC returns the case to the bench of 5 judges | Latest India News
The Supreme Court on Tuesday referred the resolution of legal issues arising from the split of the Shiv Sena to a five-judge Constitution bench, noting that the case “raises important questions” regarding the contours of the disqualification procedure and the powers of the Governor and the President in their respective spheres – a decision that, once the highest court rules on the matter, will clarify several contentious and sensitive issues that have been raised time and time again over the past decade.
A three-judge bench, headed by Chief Justice of India (CJI) NV Ramana, found that the range of legal issues arising from the struggle between factions belonging to Maharashtra Chief Minister Eknath Shinde and the Former CM Uddhav Thackeray needs to be addressed by a bigger bench for an authoritative pronouncement.
In its order for dismissal, the panel, which included Judges Krishna Murari and Hima Kohli, also questioned the accuracy of the judgment rendered in 2016 by another panel of five judges in the case of Nebam Rabia (disqualification of the Arunachal Pradesh) judging that the President cannot initiate the disqualification. procedure when his own removal is requested.
“The proposed law established by the constitutional bench in the Nebam Rebia… is based on contradictory reasons, which requires filling the gaps to maintain constitutional morality. As such, the matter is referred to a constitutional bench for the required gap-filling exercise to be conducted,” he said.
While the composition of the largest bench is yet to be known, it will sit on Thursday to accept a plea from Uddhav’s camp to block the Election Commission of India (ECI) from acting on Shinde’s plea to declare his group as the “real” Shiv Sena and assign the bow and arrow symbol.
Asking ECI to keep hold of the case until Thursday, the CJI said the Constitution bench will consider the Uddhav faction’s plea as the first issue following a claim that a decision by ECI in favor of Shinde will make the whole procedure in the higher court does not make sense.
Apart from the suspension of the proceedings in the ECI, there is also a restriction imposed by the court on the President of Maharashtra against the disqualification of MPs from the Shinde or Uddhav camp.
Although the Shiv Sena has not officially split, the Shinde-led faction is supported by the majority of party lawmakers; he also claimed it was the Shiv Sena.
The series of questions framed by the three-judge bench in its order on Tuesday included whether the president’s removal notice barred him from pursuing disqualification proceedings under the Tenth Schedule (anti-defection law) of the Constitution.
Other issues include whether a writ petition can be maintained in a high court or the Supreme Court to invite a ruling on a recusal proceeding and whether a court can challenge a lawmaker. The bench also sought the ruling of the larger bench on the sanctity of proceedings and decisions made in the House while pending disqualification petitions against members and after they were found to be disqualified.
The court further formulated a legal question regarding the power of the governor to invite a person to form the government and whether this is subject to judicial review. He also called for a determination of the extent of the Speaker’s power to appoint the legislative party’s whip and House leader.
The bench of five judges was called upon to determine the impact of deleting paragraph 3 of the tenth schedule, which removed a split in a party as a defense against disqualification of members and the scope of the powers of the commission electoral. of India regarding the determination of a split within a party. “Are internal party matters subject to judicial review? another question framed by the court asked.
The coup led by the rebel MPs forced Uddhav to resign as CM on June 29, leading to a dramatic takeover by Shinde as Maharashtra CM the following day. Later, the Shinde faction also emerged as a majority on the floor of the House with the support of the Bharatiya Janata Party (BJP), whose leader Devendra Fadnavis was sworn in as Deputy Chief Minister on June 30.
On July 20, the court observed that some “significant constitutional issues” emanated from the petitions arising from the split in the Shiv Sena, believing that a wider bench might be needed to settle points of law. The court had that day asked the two parties to submit to it the legal questions raised by the case in order to allow it to examine whether a constitutional formation should ideally hear it.
While Uddhav’s camp has implored the supreme court to decide on its own motions to disqualify lawmakers from both factions, Shinde’s camp has argued that intraparty dissent against the leadership is not a matter to be decided. decide by court order and that the petitions filed by the Uddhav camp are not tenable in law as they inherently involve political issues.
The Supreme Court is seized of a batch of six petitions filed by the Shinde and Uddhav factions concerning a disqualification procedure against the deputies of the two camps, the election of Rahul Narwekar as the new speaker of the assembly, the recognition of a new party whip for Shiv Sena, and the governor’s directive to Uddhav to prove the majority on house soil and then invite Shinde to form the new state government.
While the first two petitions to the Supreme Court were filed by the Shinde faction to prevent the Vice President (there was no President at the time) from disqualifying them as MPs, the Thackeray camp also approached the Supreme Court later, challenging the governor’s actions by ordering Thackeray to prove a majority on the House floor and inviting Shinde to form the state government.
The Uddhav camp further challenged Narwekar’s decision to recognize Shinde as the leader of the Shiv Sena and the appointment of a new chief party whip. Apart from these petitions, the Uddhav camp has also made an appeal to stop ECI from deciding on Shinde’s call to recognize the latter’s group as the real Shiv Sena and assign them the symbol of the bow and the arrow.
In 1985, the Constitution was amended to institutionalize the concept of disqualification for defection and the Tenth Schedule was added, commonly referred to as the Anti-Defection Act. The law applied to both the Lok Sabha and the state assemblies.
The 1985 amendment recognized splits and mergers as exceptions to the defection rule. A split occurs when at least one-third of the members of a political party form their own group, while a merger occurs when two-thirds of the members have supported the proposal for a merger with another political party. However, the 91st Amendment to the Constitution in 2003 removed the concept of a split within a political party and removed the disputed provision from the Tenth Schedule. The 2003 amendment made mergers the only exception to the defection rule.