SC Reserved Judgement In Rift Between Eknath Shinde And Uddhav Thackeray Factions

The Supreme Court constitutional bench comprising the Chief Justice Of India DY Chandrachud and Justices M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha on Thursday reserved their judgement in the rift between the factions of Eknath Shinde And Uddhav Thackeray which led to the controversial political crisis of Maharashtra in 2022 which later led the change in the state government.

Issues raised in August 2022 by the three judge bench led by the then CJI NV Ramana:

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?

H. What is the scope of the powers of Election Commission of India with respect to deter an ex parte split within a party.

The Senior Advocate Kapil Sibal appearing on behalf of Uddhav Thackeray had put forth befor ethe bench that the matter must be heard by a seven judge bench and the accuracy of the decision in Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly should be reconsidered. In this case a five judge bench of the Supreme Court held that the governor’s authority to call, dissolve and advance a session is subject to judicial review. The court has held that the speaker cannot initiate a disqualification process while his removal is sought via a resolution and is pending.

The bench had observed that the preliminary issue can be considered along the merits of the case and cannot be considered in an isolated way from the facts.

It was submitted by  Senior Advocate Kapil Sibal that there is no space for factions when the governor has to appoint a CM and if all of shivsena had gone to BJP, the governor would have called for floor test. It was further submitted that is the aya ram gaya ram principle that has been given up in the past.

It was further submitted by Sibal that the governor cannot call for a vote of trust based on a faction and that they should have followed the model used by Madhya Pradesh.

It was submitted by Senior Advocate Singhvi appearing on behalf of the petitioner that the governor cannot call for the vote of trust and since it is an intra party issue the governor will never come in the tenth schedule.

Proceedings Before The Election Commission Of India:

The Eknath Shinde Group filed a plea before the Election Commission of India seeking a direction on the question as to which faction is the real Shiv Sena between the Shinde Group and the Thackeray group. The ECI Ordered in the matter that the party name ‘Shiv Sena’ and the party symbol bow and arrow will be retained by the Eknath Shinde Group. The decision of the ECI was based on the strength of the legislative wing of the party to reach its decision and did not rely on the test of the organizational wing.

The Shinde group had 40 MLAs while the Thackeray group only had 15 MLAs in the Maharashtra Legislative Assembly. Similarly, in the Lok Sabha as well, out of the 18 members, 13 members supported the Shinde group while the Thackeray group had only 5 supporters. This derived the decision of the ECI in the favour of the Shinde Group.

CASE: SUBHASH DESAI V. GOVERNOR OF MAHARASHTRA

CIVIL WRIT PETITION NO. 493 OF 2022 

JUDGEMENT HAS BEEN RESERVED