The Supreme Court on Wednesday, 20 July, said the petitions filed by the Shiv Sena and its rebel MLAs raise many constitutional questions relating to defection, merger and disqualification, which may require consideration by a larger bench.
A bench headed by Chief Justice N V Ramana directed the parties to formulate the issues that require examination by a larger bench by 27 July.
"After hearing the counsels, it has been agreed that some issues may, if necessary, be referred to a larger bench also. Keeping in mind the same, to enable the parties to frame the issues, let them file the same preferably by next Wednesday," the bench, also comprising justices Krishna Murari and Hima Kohli, said.
The apex court asked the parties to the case to frame issues by 27 July for consideration by a larger bench and the matter would be heard on 1 August.
What Transpired in the Court?
The bench was hearing five pending cases related to the recent political crisis in Maharashtra that led to the fall of the Maha Vikas Aghadi (MVA) government in the state.
At the outset, senior advocate Kapil Sibal, appearing for the Uddhav Thackeray faction of the Shiv Sena, told the bench that the speaker of the Assembly recognising a whip other than the official whip nominated by the party is malafide.
"What happens to the verdict of people? The 10th schedule is turned topsy-turvy and has been used to instigate defection," Sibal told the bench.
He submitted that the governor could not have sworn in an individual (Eknath Shinde) who had sought to separate himself from the party elected to power by people and thus, was disqualified under the 10th schedule of the Constitution.
Senior advocate Abhishek Manu Singhvi, appearing for the former chief whip of the Shiv Sena, Sunil Prabhu, said a day before departing for Guwahati, the members of the party's rebel faction sent an e-mail to the deputy speaker, seeking his removal.
"This email was sent from an unauthorised email ID. The deputy speaker takes it, seizes it and says it is not on record," Singhvi said while terming the majority attained by the Shinde faction in the Maharashtra Assembly a "contrived majority".
Senior advocate Harish Salve, appearing for Chief Minister Shinde, stated that in a democracy, people may gang up and tell the prime minister that "sorry, you cannot continue".
'Do Not Want To Give Impression That We Are Tilted': CJI Ramana
"If a leader gathers strength within the party and stays in it to question its leader without leaving the party, it is not defection," Salve submitted.
He asked the court that if a large number of people in a political party feel that another man should lead them, what is wrong in it? "Heavens do not fall if a chief minister is changed. Let us get into if the speaker was appointed as per law and not on the crisis of democracy and all that," Salve said.
At this juncture, the CJI said, "Initially, I had some doubts. This is a politically sensitive case and I do not want to give an impression that we are tilted." The CJI-led bench had, on 11 July, granted interim relief to the Thackeray faction MLAs by asking Maharashtra Assembly Speaker Rahul Narwekar not to proceed with a plea seeking their disqualification as sought by the Shinde group on the ground of defying the party whip during the trust vote and the election of the speaker.
The top court is seized of five petitions and the first one was filed by the Shinde faction during the summer vacation, wherein some rebel Sena MLAs challenged the disqualification proceedings initiated by the deputy speaker.
The four remaining pleas and now the fifth one have been filed by the Thackeray faction.
Background
On 27 June, the vacation bench of the court extended the time for the rebel MLAs to file written responses to the deputy speaker's disqualification notice till 12 July.
On 3 July, Narvekar of the Bharatiya Janata Party (BJP) was elected as the speaker of the Maharashtra Assembly.
He had polled 164 votes and defeated Thackeray-led Shiv Sena candidate Rajan Salvi, who had secured 107 votes.
A day before the floor test, Narvekar had recognised Gogawale as the Shiv Sena's chief whip, removing Prabhu, who belongs to the Thackeray faction.
After winning the trust vote in the Assembly on 4 July, the Shinde faction issued a notice to 14 legislators from the Thackeray camp for violating a whip issued by Gogawale, the Sena whip and a Shinde loyalist.
Both sides have accused each other of defying the party whip during the speaker's election and the trust vote on 3 July and 4 July respectively, seeking disqualification of the legislators from both sides.
The Maharashtra legislature secretary also came into the picture and issued show-cause notices to 53 of the total 55 Shiv Sena MLAs in the state -- 39 from the Shinde faction and 14 from the Thackeray group.
The notices were issued under the Members of Maharashtra Legislative Assembly (Disqualification on Grounds of Defection) Rules.
In the trust vote, 164 MLAs had voted for the motion of confidence, while 99 had voted against it.
The Thackeray faction has also challenged the validity of the Assembly proceedings held on July 3 and July 4, in which a new speaker of the House was elected and the subsequent proceedings of floor test, in which the Shinde-led coalition had proved its majority.
It has also filed a plea challenging the decision of the newly-elected speaker to recognise the new party whip of the Sena rebels led by Shinde.
Prior to this, Prabhu had moved the top court seeking suspension from the Assembly of the chief minister and 15 rebel Sena MLAs against whom the disqualification pleas are pending.
On 29 June, the Maharashtra governor had ordered a floor test, prompting the MVA government to rush to the top court, seeking its deferment.
The bench refused to stay the governor's direction to the 31-month-old MVA government to take a floor test in the Assembly to prove its majority, after which the then beleaguered chief minister Thackeray quit office.
After Shinde was sworn in as the chief minister on 30 June, Prabhu moved the top court seeking his suspension and that of 15 Sena rebels on various grounds, alleging that they were acting as pawns of the BJP, thereby committing the constitutional sin of defection.
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