Sakina Tashrifwala
Published on: November 2, 2022 at 20:54 IST
On Tuesday, a Supreme Court Constitution Bench scheduled a hearing on the batch of petitions filed by both the Uddhav Thackeray group and the Eknath Shinde faction in regard to the political turmoil in the state of Maharashtra for November 29, 2022.
The 5-Judge Bench comprised of Justices D.Y. Chandrachud, MR Shah, Krishna Murari, Hima Kohli, and P.S. Narasimha recorded the following procedural directions following the agreement of Counsel representing all the concerned parties on specific procedural directions.
(1) Counsels must file a joint compilation of written submissions, precedents, and any other documentary evidence, as well as a single index…
(2) The preceding exercise must be completed within four weeks.
The Constitutional Bench added –
“It has been decided that the Counsels shall meet and develop the issues that would emerge for consideration or decision by the Constitution Bench. After four weeks, the proceeding will be listed for directions.”
The three-judge panel that sent the petitions to the Constitution Bench, comprised of former Chief Justice of India NV Ramana, Justice Krishna Murari, and Justice Hima Kohli, framed the following 11 issues for its consideration:
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?
K. What is the scope of the powers of Election Commission of India with respect to deter an ex parte split within a party.
During the hearing on Tuesday, however, Justice Chandrachud requested that the Counsels for the parties convene to formulate the legal questions that the Constitution Bench should address. He also stated that the list of difficulties should not be too lengthy. The Judge stated:
“Ideally, we shouldn’t have more than 25 issues.”
He also instructed the Counsels to determine which concerns each of them would cover so that there would be no overlap.
Justice Chandrachud emphasised the need of filing written submissions, noting –
“Written submissions are extremely helpful to us, particularly when there is a time lag between hearing the submissions and writing the judgment.”
He delegated to two young attorneys from both sides the responsibility of compiling the documents into soft copies and distributing them to all counsel involved.
In accordance with the Bench’s directives, the Counsels informed it that all parties would have three weeks to submit their responses.
Brief History of Petitions Before the Constitutional Bench
Petition preferred by rebel Shiv Sena leader Eknath Shinde (now Chief Minister) challenging the Deputy Speaker’s disqualification notices, and plea filed by Bharat Gogawale and 14 other Shiv Sena MLAs seeking to prevent the Deputy Speaker from acting on the disqualification petition until the resolution to remove the Deputy Speaker is decided.
On June 27, a division bench of Justices Surya Kant and JB Pardiwala extended until July 12 the deadline for the dissident MLAs to file written responses to the Deputy Speaker’s disqualification notice.
- Petition filed by Shiv Sena Chief Whip Sunil Prabhu contesting the Maharashtra Governor’s order to the Chief Minister to prove the Maha Vikas Aghadi Government’s majority.
- Petition filed by Sunil Prabhu, the whip designated by the Uddhav Thackeray-led group, challenging the newly elected Maharashtra Assembly Speaker’s decision to recognise the whip nominated by the Eknath Shinde group as Shiv Sena Chief Whip.
- Petition submitted by Mr. Subhash Desai, General Secretary of the Shiv Sena, criticising the Maharashtra Governor’s decision to invite Eknath Shinde to be Chief Minister of Maharashtra and declaring the subsequent proceedings of the State’s Legislative Assembly held on 03.07.2022 and 04.07.2022 as ‘illegal.’
- Petition filed by 14 MLAs from the Uddhav camp challenging the newly elected Speaker’s unconstitutional disqualification processes under the Tenth Schedule.