SC may list Shinde plea against Uddhav before Constitution bench

The Supreme Court on Tuesday took note of the Eknath Shinde faction's claim about the Uddhav Thackeray camp stalling the proceedings before the poll panel where the former's application staking claim over the Shiv Sena and its symbol is pending, and said it will consider listing its plea before a Constitution bench.

The Election Commission is seized of a plea by the faction led by Chief Minister Eknath Shinde seeking it be declared the real Shiv Sena and granted the party's bow and arrow poll symbol.

The top court, while referring to a five-judge Constitution bench several questions related to defection, merger and disqualification arising out of the recent Maharashtra political crisis had on August 23 directed the Election Commission not to pass any order on the Shinde faction's plea.

”According to us, there was no interim order. The court had granted an extension of time to the other side (Uddhav group).  Now, the other side is stalling the proceedings before the Election Commission. Some elections are coming up in the month of October in the state,” senior advocate N K Kaul, appearing for the Shinde faction, told a bench headed by Chief Justice Uday Umesh Lalit.

”I will look into that and I cannot say anything off the cuff, but certainly, there will be something by tomorrow,” the CJI said.

A bench headed by the then CJI N V Ramana (since retired) had on August 23 referred to a five-judge bench the petitions filed by both the factions of Shiv Sena.

The Uddhav group had raised several constitutional questions related to defection, merger and disqualification and the power of the speaker in such situations as witnessed in Maharashtra during Shinde's rebellion.

The court had asked the EC to hold its hand till the time being on the Shinde faction's plea claiming itself to be a the real Shiv Sena.

The top court had said the petitions raised important constitutional issues relating to the 10th schedule of the Constitution pertaining to disqualification, powers of the speaker and governor, and judicial review.

The apex court had said the proposition of law laid down by the constitution bench in the Nabam Rebia case relating to 10th 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," it had said.

However, the matter did not come up.

The top court had asked the Constitution bench to look into constitutional issues like whether the notice for removal of the speaker restricts him from continuing with the conduct of disqualification proceedings, can a court hold that an MLA is deemed to be disqualified by virtue of his/her actions and what is status of proceedings in the house pending disqualification petitions against the members.

The bench was hearing pending cases related to the political crisis in Maharashtra that led to the fall of the Maha Vikas Aghadi (MVA) government led by Uddhav Thackeray.

The 10th 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 Eknath Shinde can save themselves from disqualification under the 10th Schedule 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.

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.