Disqualification of Maharashtra MLAs Day #6: CJI Refers Case to 5-Judge Constitution Bench

Disqualification Proceedings Against Maharashtra MLAs

Judges: N.V. Ramana CJI, Krishna Murari J, Hima Kohli J

Adding to the 53 Constitution Bench cases pending before the Supreme Court (SC), Chief Justice N.V. Ramana and Justices Krishna Murari and Hima Kohli referred the questions of defection and disqualification arising from the 2022 Maharashtra political crisis to a 5-Judge Bench on August 23rd, 2022. 

Constitution Benches have been all but missing during CJI Ramana’s tenure. Days from retirement, CJI Ramana assured the parties that the Constitution Bench in this case would sit promptly in two days (August 25th). CJI Ramana gave similar assurances to the distressed Delhi government in its tussle with the Union for control over civil servants back in May 2022—the full composition of that Bench is yet to be announced. 


The Maharashtra-Shiv Sena political crisis began on June 21st, 2022, when a faction of the Shiv Sena comprising over 11 party members, led by Mr. Eknath Shinde, went missing. They subsequently refused to attend an emergency party meeting called by the party chief and then Maharashtra CM Uddhav Thackeray. 

On June 29th, 2022 Chief Minister Uddhav Thackeray resigned, following a Supreme Court Order refusing to stay a floor test called by Mr. Shinde. On June 30th, 2022, Mr. Eknath Shinde was sworn in as the new Chief Minister. The Court granted the Eknath Shinde-led faction time until July 12th to file a response to the disqualification notice sent by the Deputy Speaker. On July 3rd, 2022, the newly appointed Speaker, Rahul Narvekar, reinstated Mr. Shinde as the legislature party leader and recognised Mr. Bharat Gogawale as the Chief Whip of the Shiv Sena. On July 4th, 2022, the Shinde faction called for a trust vote and filed disqualification proceedings against the Thackeray faction for refusing to comply with the newly appointed Chief Whip’s directions.

A slew of petitions has since been filed by the Shinde and Thackeray factions before the Supreme Court over the issues surrounding the political crisis brewing in Maharashtra. Today, the Court heard Senior Advocate Kapil Sibal’s request for urgent mentioning of all the petitions filed in relation to the disqualification proceedings.

What will the Constitution Bench Consider?

The 5-Judge Bench in Nabam Rebia v Deputy Speaker, Arunachal Pradesh laid down the scope of the Speaker’s power to disqualify members of the Legislative Assembly in 2016 While dealing with the Maharashtra political crisis, the Supreme Court observed that the Nabam Rebia Bench left one pertinent question unanswered—Can a Speaker use their powers to disqualify while a no-confidence motion filed against them is pending before the House? The current Constitution Bench will interpret the Tenth Schedule of the Constitution to answer this limited question. 

The case raises a group of related questions that the Constitution Bench will address as well. Is a member ‘deemed’ to be disqualified from the date of their offended action, even while the Speaker’s final decision on disqualification is pending? Can legislative proceedings in which a member who is facing disqualification participates be considered valid? Can the Court review decisions made within a political party? Are the Governor’s powers to invite a politician to form the government within the scope of judicial review? Can the Election Commission decide the legitimacy of new factions after a split in the party? 

The Court ordered the Election Commission to take no action on the Eknath Shinde faction’s demand to be declared the ‘real Shiv Sena’ and use the party symbol. The Constitution Bench will first address the ‘real Shiv Sena’  question on August 25th.