New Delhi, Aug 23 The Supreme Court on Tuesday referred to a constitution bench the petitions filed by the Shiv Sena and its rebel MLAs on constitutional issues of splits, merger, defection, and disqualification.
A three-judge bench headed by Chief Justice N.V. Ramana referred the matter to a five-judge bench observing that the matter involves important constitutional issues. "List the matter before the constitution bench the day after tomorrow".
The bench will decide about the symbol related to the Election Commission proceeding...," said the bench. It also asked the Election Commission not to take a final call on Eknath Shinde's faction claim as the official Shiv Sena party till Thursday (August 25). Senior advocate Kapil Sibal, representing the Uddhav Thackeray faction, asked the top court to restrain the Election Commission from deciding Shinde's claim.
The bench noted that a constitution bench would have to examine the gap left by the decision in the case of Nabam Rebia v. Deputy Speaker in connection with the power of the deputy speaker to initiate disqualification proceedings. The bench said it is important to highlight the power of deputy speaker to initiate disqualification proceedings when such proceedings has been initiated against him, and added that over here Nabam Rabia judgment needs gap filling.
The three-judge bench said the larger bench needs to look at questions: What is the impact of removal of para 3 of the Tenth Schedule? What is the scope of the power of the speaker? What is the scope of power of the Election Commission of India when there is rift in the party?
On August 4, in a relief to Uddhav Thackeray, the Supreme Court orally asked the Election Commission of India (ECI) to not decide a plea by Eknath Shinde group to recognise them as real Shiv Sena. The top court told the ECI if Thackeray-faction seeks time to file response to its notices on Shinde-faction petition, then it should consider their request keeping in mind the views expressed by the apex court.
The bench told senior advocate Arvind Datar, representing ECI, "Let them file affidavits. But can't you hold...let no precipitative action be taken...we are not passing any order. But at the same time don't take any precipitative action..."
Datar submitted that disqualification proceedings under the tenth schedule operate in a different territory and it does not affect the ECI's power to decide the claim of rival factions for official recognition.
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