INDIA. Mumbai: A Constitution Bench of the Supreme Court, on Wednesday, adjourned the hearing of an interim application moved by the Uddhav Thackeray group to restrain the Election Commission of India (ECI) from deciding the claim raised by the Eknath Shinde group for recognition as the official Shiv Sena party to September 27.
On Tuesday the Shinde camp had sought an urgent hearing since earlier the SC had restrained the ECI from deciding upon the claim for recognition as the official Shiv Sena.
Senior Advocate, Neeraj Kishan Kaul, representing the Shinde camp had pointed out that the proceedings before the ECI to determine the ‘real’ Shiv Sena were held in abeyance as per the directions of the ECI.
He told the court that as per SC’s last order, the issue of whether proceedings before the ECI can go on or not were to be taken up by the Constitution bench. The court had directed that the case be listed on August 25 to consider that question, but it was not listed.
On Wednesday a 5-judge Bench comprising Justices D.Y. Chandrachud, M.R. Shah, Krishna Murari, Hima Kohli, and P.S. Narasimha heard a batch of petitions filed by members of both groups challenging the various actions of Speaker/Deputy Speaker and the Governor about the political developments in Maharashtra.
Kaul submitted that the ECI cannot be prevented from taking a decision. He also cited the urgency of the impending local body elections. He pointed out that the earlier 3-judge bench led by the then CJI NV Ramana had not passed any stay order against the ECI.
However Senior Advocate Kapil Sibal, appearing for the Uddhav group pointed out the proceedings of August 03, where the bench had orally asked the ECI not to take any precipitative action. Besides, that order granted liberty to the Uddhav group to seek time, and asked ECI to consider the adjournment request having regard to the pendency of the case in SC, Sibal stated.
Senior Advocate Dr Abhishek Manu Singhvi, also appearing for the Uddhav group, submitted that disqualified members cannot approach the ECI. However Senior Advocate Arvind P Datar, appearing for ECI, submitted that if there is a complaint under Symbols Order, ECI has no option but to decide it. “Even if disqualified, the MLAs will be removed from the legislature, but not from the party”.
In response, Sibal retorted by saying that disqualification is attracted to voluntary giving up the membership of the party and not the legislature party.
The bench said that it will decide the matter on September 27. “We are not passing the order. We will hear you on that day”, the bench said.
On August 23, the 3-Judge Bench led by the then Chief Justice of India, N.V. Ramana referred the issues to a Constitution Bench. In response to the request of Sibal, to restrain the ECI from deciding Shinde’s claim as the official Shiv Sena party, the bench had noted that the matter would be listed shortly and in the interim ECI was restrained from taking a definitive call on said issue.
Now the Constitutional bench is required to deal with many issues such as: 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 SC in Nabam Rebia (Arunachal Pradesh Assembly).
Or 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, whether the court can hold that a member is deemed to be disqualified by his/her actions absent a decision by the Speaker?
If the decision of the speaker that a member has incurred disqualification under the Tenth Schedule relates to the date of the complaint, then what is the status of proceedings that took place during the pendency of the disqualification petition?