Petitions filed by Shiv Sena, Eknath Shinde to be heard by five-judge constitution bench

The Supreme Court on Tuesday referred the petitions filed by the Shiv Sena and Maharashtra Chief Minister Eknath Shinde, raising several constitutional questions related to defection, merger and disqualification, to a five-judge constitution bench.

The top court ordered the listing of petitions before the constitution bench on Thursday and directed the Election Commission not to pass any orders on Shinde faction's plea that it be considered as the 'real Shiv Sena' and granted the party's poll symbol.

A bench headed by Chief Justice N V Ramana said the batch of petitions raise important constitutional issues relating to the Tenth Schedule of the Constitution pertaining to disqualification, powers of the Speaker and Governor and judicial review.

The apex court said the proposition of law laid down by the constitution bench in the Nabam Rebia case relating to the Tenth Schedule stands on a contradictory reasoning which requires 'gap filling' to uphold constitutional morality.

"The matters raise important issues which need consideration by a five-judge constitution bench. List the matter before the constitution bench the day after tomorrow and the bench will decide about the symbol related to the Election Commission proceeding at the beginning," the bench, which also comprised Justices Krishna Murari and Hima Kohli, said.

The top court asked the constitution bench to look into constitutional issues such as whether notice for removal of speaker restricts him from continuing with disqualification proceedings; whether a petition under Article 32 or 226 lies against disqualification proceedings; can a court hold that a member is deemed to be disqualified by virtue of his/her actions; what is status of proceedings in the house pending disqualification petitions against the members etc.

The Tenth Schedule of the Constitution provides for the prevention of defection of the elected and nominated members from their political party and contains stringent provisions against defections.

The Uddhav Thackeray faction of the Shiv Sena had earlier submitted that party MLAs loyal to Maharashtra Chief Minister Eknath Shinde can save themselves from disqualification under the Tenth Schedule of the Constitution only by merging with another political party.

The bench had asked the Shinde faction to redraft the legal issues of split, merger, defection and disqualification raised in petitions filed by the Thackeray camp that are to be adjudicated upon following the political crisis in Maharashtra.

The Shinde group had said the anti-defection law is not a 'weapon' for a leader who has lost the confidence of his own party to lock his members and somehow hang on.

The Supreme Court has directed the Election Commission not to proceed on an appeal made by Maharashtra Chief Minister Eknath Shinde's camp seeking recognition as the 'true Shiv Sena party' and the use of the 'bow and arrow' emblem until Thursday.

(With PTI inputs)