[Shiv Sena Vs Shiv Sena] Reference to seven judge bench to reconsider Nabam Rebia Judgment necessary: Uddhav Faction tells Supreme Court

Read Time: 07 minutes

The Supreme Court on Monday listed the case concerning Maharashtra political crisis for January 10, 2023 and asked senior lawyer Kapil Sibbal appearing for Uddhav Thackeray faction to submit a brief note on his contention of referring the matter to a seven judge bench.

A bench led by Chief Justice of India DY Chandrachud was informed that when arguments for the case are heard, Sibal will be highlighting the need for referring the case to a larger bench in light of the case "Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1" (Nabam Rebia case). The top court had held in the landmark case that the constitutional purpose and constitutional harmony would be maintained and preserved, if a Speaker refrains from adjudication of a petition for disqualification under the Tenth Schedule, whilst his own position, as the Speaker, is under challenge. This would also, allow the two provisions [Article 179(c) and the Tenth Schedule] to operate in their individual constitutional space, without encroaching on the other.

The current petition(s) concerning the situation which unfolded in Maharashtra, in the wake of Eknath Shinde's rebellion against the Maha Vikas Aghadi (MVA) government then led by Chief Minister Uddhav Thackeray raise important constitutional questions relating to interpretation of Schedule X of the Constitution pertaining to disqualification, as well as the powers of the Speaker and the Governor and the power of judicial review thereof.

A bench comprising then Chief Justice NV Ramana, Justices Krishna Murari and Hima Kohli have already formulated 11 questions for consideration of a constitution bench.


In June, Shinde had moved the Supreme Court seeking a direction to the Deputy Speaker to not take any action in the disqualification petition moved by the Sena, which had in turn sought disqualification of Shinde and other MLAs. 

A vacation bench of Justices Surya Kant and Pardiwala had extended the time granted by Deputy Speaker to Shinde and other MLAs to file their response to the disqualification petition. 

Sunil Prabhu, the erstwhile Chief Whip of the Shiv Sena and a member of the Maharashtra Legislative Assembly, had moved the Supreme Court under Article 32 of the Constitution, challenging the Governor's communication to hold a floor test on June 30. The Supreme Court, however, refused to stay the floor test in Maharashtra on June 30. 

After the hearing in Supreme Court on June 29, Bharat Gogawale, the Shiv Sena MLA from Mahad, filed an application seeking suspension of Shinde and other 'delinquent MLAs' from the membership of the Maharashtra Legislative Assembly as an interim measure, till a decision on their disqualification petitions. The vacation bench, however, refused the urgent listing of the plea. 

Shinde took oath as the Chief Minister of Maharashtra on June 30. Subsequently, on July 3, a floor test was conducted and Shinde emerged successful. His camp moved a plea for disqualification of Shiv Sena MLAs, who did not vote for Shinde at the floor test. 

On July 11, the SC  orally asked the Maharashtra Legislative Assembly Speaker to not decide matters pertaining to the disqualification of the Maharashtra Legislative Assembly members till the petitions filed by the delinquent MLAs of Shiv Senachallenging the disqualification proceedings are pending before the apex court. The Uddhav camp has also challenged the decision of the Governor to appoint Shinde as the Chief Minister.

Case Title: Subhash Desai Vs Governor Maharashtra