In Sena vs Sena, Supreme Court refers pleas to 5-judge bench; asks EC to not pass order on party symbol till Thursday

The Supreme Court on Tuesday referred to a five-judge Constitution bench the dispute between faction of Shiv Sena, one led by Uddhav Thackeray and the other led by Eknath Shinde, raising several constitutional questions related to defection, merger and disqualification.

The top court ordered the listing of petitions before the constitution bench on Thursday and directed the Election Commission not to pass any orders on Shinde faction's plea that it be considered the real Shiv Sena and granted the party's poll symbol.

A bench headed by Chief Justice N V Ramana said the batch of petitions raise important constitutional issues relating to the 10th schedule of the Constitution pertaining to disqualification, power of the Speaker and Governor and judicial review.

The apex court 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," the bench also comprising Justices Krishna Murari and Hima Kohli said.

The top court asked the constitution bench to look into constitutional issues whether notice for removal of speaker restricts him from continuing with disqualification proceedings, whether a petition under Article 32 or 226 lies against disqualification proceedings, can a court hold that member is deemed to be disqualified by virtue of his/her actions, what is status of proceedings in the house pending disqualification petitions against the members.

The bench was hearing 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.

The Tenth 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 Maharashtra Chief Minister Eknath Shinde can save themselves from disqualification under the Tenth Schedule of the Constitution 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 following the recent political crisis in Maharashtra.

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.

(With PTI inputs)