A Constitution Bench on Wednesday decided to hear on September 27 the question whether the Election Commission of India can go ahead and hear Maharashtra Chief Minister Eknath Shinde's claim over the Shiv Sena party and its symbol of 'bow and arrow' even as petitions concerning the disqualification of his breakaway faction for defection are pending in the top court.
"We will list the interim applications on the question whether the Election Commission should go on or not. We will decide this on that day… September 27. We will see if any directions are necessary for the Election Commission or not," Justice D.Y. Chandrachud, heading the five-judge Bench, addressed lawyers appearing in the case.
The rival Uddhav Thackeray loyalists had filed the interim applications earlier in the Supreme Court against the Election Commission’s (EC) proceedings.
They have argued that the EC proceedings under the Symbols Order of 1968 ought to wait for the Constitution Bench's decision on whether the dissent of Mr. Shinde’s faction, without subsequently forming a new party or merging with another, amounted to a “split” from the original Shiv Sena party.
A “split” from the original political party without a subsequent merger with another party or formation of a new faction was no longer a defence from disqualification under the Tenth Schedule (anti-defection law) of the Constitution.
"If the disqualification is upheld, they have no claim over the party nor the locus standi to approach the Election Commission," senior advocate Kapil Sibal, for the Thackeray camp, said.
On August 4, a three-judge Bench of the apex court before referring the case to the Constitution Bench, had urged the EC to desist from taking any precipitate action on Mr. Shinde's claim over the party and its symbol.
However, on Wednesday, senior advocate Neeraj Kishan Kaul, for the Shinde faction, said the EC proceedings should go ahead as the municipal elections were scheduled in October and the Assembly polls were also in the horizon.
"Besides, disqualification hearings against MLAs have nothing to do with the EC proceedings," Mr. Kaul argued.
The EC, represented by senior advocate Arvind Datar, argued that disqualification proceedings under the Tenth Schedule (anti-defection law) of the Constitution did not affect the poll body's power to decide rival claims over a party.
"We have to issue notice to the other party if any person approaches us under the Symbols Order," Mr. Datar submitted.
Besides, Mr. Datar argued that disqualification would only lead to removal from the legislature and not from the political party itself. Hence, Mr. Shinde's claim over the party may survive despite disqualification, he contended.
Mr. Sibal countered that disqualification is attracted under the Tenth Schedule when an MLA voluntarily leaves the membership of the political party itself and not just the legislature party.
"Let the parties file short notes of their submissions. This will facilitate arguments," Justice Chandrachud said.
The Constitution Bench has to decide on 10 questions of law in the case.
These include questions on the scope of the power of the Speaker to determine the Whip and the leader of the House
legislature party; whether intraparty decisions were amenable to judicial review; the extent of discretion and power of the Governor to invite a person to form the government, and whether the same is amenable to judicial review; the scope of the powers of the Election Commission of India with respect to determination of a split within a party.
The court has also asked the Constitution Bench to decide whether the notice for removal of a Speaker restricts him from continuing with disqualification proceedings; whether a constitutional court an be approached for a decision on a disqualification petition; can a court hold that a member is “deemed” to be disqualified by virtue of his/her actions, absent a decision by the Speaker; what is the status of proceedings in the House during the pendency of disqualification petitions against the members, among others.
