Supreme Court to hear Shiv Sena dispute on merits from Feb 21: what’s the background of the case?

In ‘Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Legislative Assembly’ (2016), the Supreme Court had ruled that it would be “constitutionally impermissible for a Speaker of the House to adjudicate upon disqualification petitions under the anti-defection law as per Tenth Schedule while a motion of resolution for his/her own removal from Office of Speaker is pending”.

What is the background of petitions before the Supreme Court and claims made by rival parties?

From June 2022, the Supreme Court has been hearing a batch of petitions filed by leaders from the Thackeray and Shinde factions of the Shiv Sena.

The Shinde camp leaders challenged the June 21 decision of the Assembly Deputy Speaker Narhari Zirwal recognising Ajay Choudhari as leader of the Shiv Sena Legislature Party (SSLP) in place of Shinde, calling it “illegal, unconstitutional”, and taken with “bias”.

They said Zirwal had taken the decision because his party, the NCP, was supporting the “minority faction” of the Sena led by Thackeray. The plea also challenged the disqualification notices served on Shinde and 15 MLAs supporting him on June 25 for not attending a party meeting convened by then Chief Minister Thackeray.

Relying on ‘Nabam Rebia’, the petition argued that Zirwal could not act on the disqualification petition against the 16 MLAs while a notice for a resolution seeking his removal was pending. In response, Zirwal told the court that the no-confidence motion against him was rejected as the genuineness or veracity of the notice could not be ascertained.

On June 27, a Bench of Justices Surya Kant and J B Pardiwala extended until July 12, 2022 the 48-hour window given by Zirwal to the 16 Shinde camp MLAs to reply to the disqualification notices served on them. The court, however, refused to restrain the holding of the floor test in the Assembly until July 11.

How did events unfold in Maharashtra thereafter?

Then Governor Bhagat Singh Koshyari asked then CM Thackeray to face a floor test on June 30 to prove his majority. After the SC refused to stay the floor test, Thackeray resigned at night on June 29.

On June 30, Shinde was sworn in as the new CM of Maharashtra, with BJP leader Devendra Fadnavis as the Deputy Chief Minister.

On July 3, BJP MLA Rahul Narwekar was elected Speaker of the Assembly. The government led by Shinde won a trust vote on July 4. The rival factions then accused each other of defying the party whip on July 3 and July 4, and sought the disqualification of legislators from both sides.

The Thackeray camp, through its general secretary Subhash Desai, then moved the Supreme Court challenging the Governor’s appointment of Shinde as CM, and Narwekar’s decision to recognise the Shinde group’s nominee as the party’s Chief Whip.

Why was the issue referred to the five-judge Constitution Bench?

On August 23, a three-judge SC bench led by then CJI N V Ramana referred the questions arising out of petitions filed by rival camps to a five-judge Constitution Bench, saying the Nabam Rebia verdict “requires gap filling to uphold constitutional morality”.

Former CJI Ramana framed 10 issues for the consideration of the Constitution Bench.

The first of these was to ascertain whether the notice for removal of the Speaker restricted him/ her from continuing with disqualification proceedings under the Tenth Schedule of the Constitution, as held in ‘Nebam Rabia’.

The Constitution Bench was also asked to consider a situation in which the Speaker disqualifies members from the date of the complaint — what would be the status of the proceedings that took place during the pendency of the disqualification petition?

The scope of the Speaker’s powers related to the Whip and Leader of the House, extent of judicial review in intra-party decisions, and the extent of the Governor’s power to invite a person to form a government and its judicial review were the other issues that were sought to be addressed.

The five-judge Constitution Bench was also asked to address the issue of scope and powers of the Election Commission of India (ECI) to take a decision on the split within a party.

On September 27, a five-judge Bench led by (present CJI) D Y Chandrachud rejected the Thackeray camp’s plea to stay the proceedings pending before the ECI on the Shinde camp’s request to recognise his faction as the real Shiv Sena and allot it the party’s ‘bow and arrow’ election symbol.

What did the ECI say on the rival claims to the symbol and the party name?

On February 17, the ECI ordered that the party name “Shiv Sena” and bow and arrow symbol should be retained by the Eknath Shinde faction, and recognised it as the original Shiv Sena.

Earlier in October last year, the ECI in an interim order had frozen the bow and arrow symbol, and had allotted ‘flaming torch’ to the Thackeray faction and ‘two swords and shield’ to the Shinde faction. The two factions were called “Shiv Sena (Uddhav Balasaheb Thackeray)” and “Balasahebanchi Shiv Sena” respectively.

Then, in December, the Delhi High Court, while disposing of Thackeray’s appeal against an order of the single judge of the HC that had dismissed his plea challenging the ECI’s freeze on the ‘Shiv Sena’ party name and ‘bow and arrow’ symbol, said that the poll body is “free to proceed with the adjudication of the dispute”.

What were the arguments before the Constitution Bench on the plea seeking reconsideration of ‘Nabam Rebia’ by a larger Bench?

The Shinde group had cited the 2016 judgment when the crisis unfolded in June last year. The Thackeray camp, which sought reference to the seven-judge Bench, argued that by invoking ‘Nabam Rebia’, MLAs who want to defect can pre-empt and stall disqualification proceedings against them by seeking the Speaker’s removal through a notice.

However, the Shinde faction said that the matter had become academic and there was no reason to refer it to a larger Bench. It said that Thackeray had resigned even before the floor test, as he realised that he did not have the requisite number.

The Thackeray side contended that the matter had ramifications for the country’s democratic future. It argued that the court must not distinguish the Rebia decision from the Shiv Sena matter, or else the same would generate future litigation.

The CJI had remarked during the hearing that the matter raises “tough constitutional questions to answer on both counts”.

How will the Constitution Bench proceed from February 21 onward?

The five-judge Bench on Friday noted that “whether the principle in Nabam Rebia case has an impact upon the facts in the present case needed deliberation”, and the issue of “whether the reference of the decision in Nabam Rebia is warranted would be determined together with merits of the case”.

CJI Chandrachud said that the Bench has kept the issue of reference open, and it had not formed a “complete view” of the matter.

“We must look at the overall layers of the matter. Therefore we have not decided whether reference can be made. We may take a call after we hear arguments on merits as well. We are not going into the merits only for the purpose of reference but we are going to hear the overall matter,” the CJI had said.

The five-judge Bench, after conducting the hearing on the merits of the case, could decide whether the reference can be made to the larger Bench to reconsider the decision in ‘Nabam Rebia’.

With Justice M R Shah retiring on May 15 and Justice Krishna Murari retiring on July 8, it is possible that the Bench could conclude the hearing and pass the verdict in the pleas within three months.