The Supreme Court on Wednesday said the matter related to the disqualification of the Speaker and members of the Maharashtra Legislative Assembly, following the split in the erstwhile Shiv Sena, was a tough constitutional issue to decide. The Shiv Sena is now divided in two factions, one led by Maharashtra Chief Minister Eknath Shinde and other by former Chief Minister Uddhav Thackeray.
Senior Advocate Kapil Sibal, representing the Uddhav Thackeray faction, said that the matter would have large-scale implications and therefore, should be heard by a seven-judge Constitution Bench.
The Bench led by Chief Justice of India (CJI) D.Y. Chandrachud, which resumed hearing on the matter for the second day today, said it would consider the proposal.
However, Senior Advocate Neeraj Kishan Kaul, appearing for the Shinde group, opposed the proposal, saying that sending the matter to a larger Bench on the basis of hypothetical issues was not right.
The arguments will continue tomorrow.
Earlier on Tuesday, Sibal had apprised the Apex Court that the Tenth Schedule of the Constitution has been misused by all the Governors.
Sibal argued that there was an urgent need for referring the case to a larger bench in light of the Nabam Rebia case.
Appearing for the Uddhav Thackeray faction, Sibals’s submissions centered around the correctness of the Nabam Rebia case.
He highlighted the Article 179 and 181 of the Constitution and said that the Rebia case had ‘polluted’ the whole process of disqualification, which has ultimately lead to the toppling of a democratically-elected government.
He said people who had been disqualified, were allowed to vote in the Floor Test.
Sibal said it was a misfortune that people who had been disqualified, came back through judicial review. This was setting a wrong image, governments cannot be toppled like this, he added.
The Senior Advocate said it was important to note that in the Nabam Rebia case, the Supreme Court had said that the constitutional purpose and harmony could be maintained and preserved, if the Speaker refrained from adjudication of a petition for disqualification under the Tenth Schedule, whilst his own position, as the Speaker, was under challenge.
The court has said that this would also, allow the two provisions [Article 179(c) and the Tenth Schedule] to operate in their individual constitutional space, without encroaching on each other.
The petition at present concerned with the situation which unfolded in Maharashtra, when Eknath Shinde’s rebellion against the Maha Vikas Aghadi (MVA) government, then led by Chief Minister Uddhav Thackeray, raised important constitutional questions relating to interpretation of Schedule X of the Constitution pertaining to disqualification, as well as the powers of the Speaker and the Governor and the power of judicial review thereof.
A Bench of then Chief Justice N.V. Ramana, Justice Krishna Murari and Justice Hima Kohli had formulated 11 questions for consideration of a Constitution Bench.
Last year in November, the Constitution bench gave four weeks to the two factions of Shiv Sena to file their compilations of arguments, index and case law references.
Later when the matter was heard in December, the Supreme Court had listed the matter for February, with due instructions to Sibal for submitting a note regarding referring the case to a seven-judge bench.
Submissions made by Solicitor General Tushar Mehta.
Tushar-Mehta-Reference-Submissions-Subhash-Desai