Supreme Court: The Constitution bench of Dr. D.Y. Chandrachud, CJ., and M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha JJ., continues to hear the matter related to the split in the Shiv Sena party and the ongoing political battle in Maharashtra.

Kapil Sibal, appearing on behalf of Uddhav Thackeray faction listed down the following issues for the consideration of the bench:

a) Whether the notice of removal of the speakers restricts him from continuing the disqualification proceedings under Schedule X of the Indian Constitution as held by the Court in Nabam Rebia verdict?

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 or her actions?

d) What is the status of proceedings in the House during the pendency of disqualification petitions against the members?

e) If the decision of the speaker is that a member has incurred disqualification under the 10th Schedule relating 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 from the 10th Schedule?

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 10th Schedule?

i) Are intra-party questions amenable to judicial review? What is the scope of the same?

j) What is the 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 deterrence of an ex-parte split within a party?

On 17-02-2023, the Supreme Court bench had deferred the preliminary question posed by the Uddhav Thackeray faction to reconsider the verdict of Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1 which had held that the Speaker could not initiate disqualification proceedings when a resolution seeking his removal was pending.

On the question of reference, the coram had stated that the matter could not be decided in isolation and divorced from the facts of the case and same needed to be decided along with the merits of the case.

The matter has been adjourned for hearing on 22-02-2023.

[Subhash Desai v. Governor of Maharashtra, Civil Writ Petition No. 493 of 2022, matter heard on 21-02-2023]

*Simran Singh, Editorial Assistant summated the data.

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One comment

  • The X th Schedule is against the basic structure of Constitution. An MP or MLA is representative of people of constituency. He cant be tied town by the dictate of his political party. Constitution do not give any recognition to a political Party. It is under ordinary law that a group of persons form an association to form a political party and get recognition from election commission only with regard to a common election symbol and name to fight election through country/State.
    It is surprising that every single ordinary citizen has freedom of expression but an elected representative has no such individual/personal freedom of expression.

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