[Maharashtra Political Crisis] Supreme Court refers batch of petitions to constitution bench; Asks ECI not to pass any orders till Thursday

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The bench opined that Nabam Rabia judgment which was heavily relied upon by both sides needs some gap filling and thus, the matter should be heard by a constitution bench. The constitution bench will also decide whether ECI should continue hearing the proceedings initiated by the Shinde camp seeking to be recognized as the real Shiv Sena.

A Supreme Court bench headed by Chief Justice of India Justice NV Ramana today referred the batch of petitions pertaining to the Maharashtra political crisis to a 5 judge constitution bench.

The court has asked the Election Commission not to pass any orders in the proceedings initiated by the Shinde camp seeking to be recognized as the real Shiv Sena, till Thursday as the bench is likely to assemble then. 

The bench, also consisting of Justices Hima Kohli and Krishna Murari, while passing the order referring the batch to a constitution bench, noted that the petitions raise important questions pertaining to the power of the Deputy Speaker of the Legislative Assembly to initiate disqualification proceedings when the same is initiated against him. The bench observed that the judgment of the Supreme Court in Nabam Rabia's case, which was relied on by both sides, needs gap filling. 

It was further observed that the court has to ascertain the impact of Para 3 of the 10th schedule of the Constitution and the power and scope of the Speaker. Court noted that it should also be determined as to what is the power of the Election Commission of India when there is a rift in the party. Thus, the matter has been referred to a larger bench. 

Senior Advocate Kapil Sibal, appearing for the Uddhav camp, urged the court to protect them from ECI proceedings till the constitution bench assembles. He said, "Eknath Shinde is deemed to be disqualified. ECI is dealing with the symbol plea by him." The court, thus, informed the parties that the constitution bench will assemble on Thursday and directed the election commission not to proceed with Shinde's plea till the next date of hearing. 

On the last date of hearing, Supreme Court orally asked the Election Commission of India not to precipitate the proceedings initiated by the Shinde camp seeking to be recognized as the real Shiv Sena.

Earlier, Dr.Singhvi, had argued that the constitutional sin of defection is so great that even the majority cannot legitimise it. Queen’s Counsel Harish Salve had argued that anti-defection law is not a weapon for a leader who has lost the majority within the party to hang on to power, by locking up its members.

In June, Eknath Shinde had moved the Supreme Court seeking direction to the Deputy Speaker to not take any action in the Disqualification Petition moved by Shiv Sena, seeking disqualification of Shinde and other MLAs.

A vacation bench of Justices Surya Kant and Pardiwala had extended the time granted by Deputy Speaker to  Eknath Shinde and other MLAs to file their response in their disqualification petition. 

Sunil Prabhu, the erstwhile Chief Whip of Shivsena and a Member of the Maharashtra Legislative Assembly had moved the Supreme Court under Article 32 of the Constitution challenging the Governor's communication to hold a floor test on June 30, 2022. The Supreme Court, however, refused to stay the floor test in Maharashtra on June 30, 2022. 

After the hearing in Supreme Court on June 29, 2022, Bharat Gogawale, the Shivsena MLA from Mahad, filed an application seeking to suspend Eknath Shinde and other 'delinquent MLAs' from the membership of the Maharashtra Legislative Assembly, as an interim measure, till their disqualification petitions are finally decided. The vacation bench, however, refused the urgent listing of the plea. 

Eknath Shinde took oath as the Chief Minister of Maharashtra on June 30, 2022. Subsequently, on July 3, 2022, a floor test was conducted and he emerged successful. His camp moved a plea for disqualification of Shiv Sena MLAs, who did not vote for Shinde at the floor test. 

On July 11, 2022, Supreme Court orally asked the Maharashtra Legislative Assembly Speaker to not decide matters pertaining to the disqualification of the Maharashtra Legislative Assembly Members till the petitions that were filed by the delinquent MLAs of Shiv Sena challenging the disqualification proceedings are pending before the Apex Court. The Uddhav camp has also challenged the decision of the Governor to appoint Shinde as the Chief Minister. 

Case title: Sunil Prabhu Vs Principal Secretary, Governor of Maharashtra and a batch of petitions