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Real Shiv Sena: CJI Ramana moots referring issue to Constitution bench

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The Supreme Court today said that the issues arising out of a batch of petitions related to the Maharashtra political crisis should be referred to a five-judge Constitution Bench.

The bench of Chief Justice of India NV Ramana along with Justice Krishna Murari and Justice Hima Kohli today heard petitions related to the formation of the Eknath Shinde-led BJP government in Maharashtra.

The bench also heard matters on the disqualification of rebel MLAs, and the right over the Shiv Sena’s bow-and-arrow symbol.
Court after hearing all the parties said that

“We will decide whether to refer matter to a five-judge Constitution Bench. The Election Commission (EC) has decided to submit reply by Uddhav faction [to application for symbol request made by the Shinde faction]. They will seek time. EC to grant reasonable adjournment. We will take a call by Monday.”

Senior Advocate Harish Salve who appeared for the Shinde faction submitted that under the Tenth Schedule of the Constitution disqualification takes place only if the Speaker reaches a conclusion that a member has voted against the stand of a party.


He further questioned “Then we have to see if pleas are infructuous or misconceived. Can voting against party directive be considered as void? Is that action illegal or an action which is lawful?”

The Chief Justice asked him “Then what is the use of whips? Does anti-defection apply to only those things?”

To which Salve replied “Suppose a person is elected by corrupt practices all that he does is legal till he gets disqualified. Anti-defection law is to strike a balance”.

The senior lawyer also that their case is whether the High Court can consider this? If so then in every case where the ruling party and their dispensation is in problem, parties will come up with issues like bias etc against the Speaker.”

CJI Ramana responded,”You say this Court and High Court should not hear this and this is after you had approached us first.”

Thackeray faction of Shiv Sena was represented by Advocate Kapil Sibal who argued that there was no need to refer the issues to a Constitution Bench.

The CJI questioned that incase of two groups claiming themselves to be the real political party. How would general members of the political party recognise as to who is the original political party.”

Sibal replied that Shinde faction say they have the support of 40 out of 50 party members and thus they say they are real Shiv Sena. Now if the 40 are disqualified, what lies in this? If Election Commission decides one way or the other, what happens to this defection?”

Abhishek Manu Singhvi added that till the Court decides, how can EC decide this issue so that later they say that these proceedings are infructuous?”

Senior Advocate Arvind Datar who appeared for Election Commission then said that when the MLAs become disqualified, they are disqualified from the House but not from the party from the party.

He further said that this is not a political issue. Arvind Datar added that the Tenth Schedule cannot interdict this, also we can decide who can have the symbol only after the evidence is adduced.”

The Election Commission was asked by the Court for allowing  the Thackeray faction to submit an affidavit, and in the meantime, wait to decide as to who gets the symbol or take precipitative action.

Yesterday, the Court took an unfavourable view of the arguments made by the Shinde faction that the petitions filed by the Thackeray camp with regard to the Shiv Sena symbol, are not maintainable.

CJI Ramana remarked “Who came to the Court first? Your submissions are leading to the point that you filed a writ and you got some time for 10 days and now other petitions should be ignored”


Due to the unforeseen political crisis in Maharashtra, rebel MLAs of the Shinde faction had received disqualification notices from the then Deputy Speaker for acting against the party whip while voting during the Member of Legislative Council (MLC) elections in the State. The top court was approached by the rebel MLAs then against the disqualification notices.

On 27th June, the Apex Court had granted interim relief to Shinde and his rebel group of MLAs by extending the time to file responses to the disqualification notices sent by the Deputy Speaker, till July 12.

On June 29, the Court also gave the go-ahead to a floor test called for by Governor Bhagat Singh Koshyari which led to the fall of the Thackeray government while Shinde took oath as Chief Minister with the backing of the BJP, which was the single largest party in the House.

The camp Thackeray had in the meantime filed various petitions before the top court. One of the petitions has challenged the illegal summoning of the Assembly by the Governor of Maharashtra for conducting the floor test.

The illegal order of the newly appointed Speaker removing Ajay Chaudhary and Sunil Prabhu respectively from the posts of leader as well as Chief Whip of the Shiv Sena Legislature Party was challenged in the other petition.

The Election Commission was approached by the Shinde faction to decide which is the real Shiv Sena – the Shinde camp  or the Thackeray camp??

The Thackeray camp had then move to the Supreme Court,for contending that the Election Commission should be restrained from deciding the plea by the other faction (Shinde camp)till the disqualification of the rebel MLAs is decided by the apex court and final decision comes

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