The Supreme Court on Wednesday said that several constitutional questions have arisen in a matter related to the political upheaval caused by rebel Shiv Sena leader Eknath Shinde in Maharashtra, which may require consideration by a five-judge bench.
The top court asked Maharashtra Speaker not to deal with disqualification petitions till further orders and also directed the Legislative Secretary to keep all records in safe custody.
Taking up a batch of petitions filed by Shiv Sena leaders and Shinde and his supporting MLAs, a bench presided over by Chief Justice N V Ramana said some of the issues would require adjudication by a larger bench and reference might be necessary.
"Does the minority in a party have a right to dissolve appointments made by the majority? This and other issues have to be decided," the bench said.
"What if a Chief Minister does not enjoy the confidence of his party, despite being a leader in Legislative Assembly," the bench further asked.
The bench also wondered what there would be consequences, once the split in the party had not been recognised after deletion of para 3 of the Tenth Schedule by the 91st Constitutional Amendment in 2003.
The bench, also comprising Justices Krishna Murari and Hima Kohli, asked the counsel appearing for the parties, involved in the matter, to frame issues likely to be raised before the court.
The court posted the matter for further hearing on August 1.
Senior advocate Kapil Sibal, appearing for Uddhav Thackeray's Shiv Sena, contended that 40 members of the party, by their conduct, are deemed to have incurred disqualification by giving up party membership as per para 2 of Tenth Schedule (anti-defection law) of the Constitution.
He asked the court to summon the legislative assembly records.
Sibal contended that democracy is in danger if the government in any state can be toppled despite the bar under the Tenth Schedule. He claimed the Governor could not have sworn in an individual who had sought to separate himself from the party, elected by the people and thus disqualified under the Tenth Schedule. He alleged the Schedule has been used to instigate defection and it has been turned topsy-turvy.
Senior advocate Harish Salve, appearing Shinde, said inner party democracy has been throttled by disqualification proceedings.
"If a large number of people in a party feels that another man should lead, what is wrong with that? Are we in such a hopeless situation that a man who cannot even find 20 MLAs to support him has to be brought back to power by the courts?” Salve asked.
"Heavens don't fall if a Chief Minister is changed. Let's get into if the Speaker was appointed as per law and not on the crisis of democracy and all that," he said.
Salve further contended the court has never interfered with the working of a political party. He said raising a voice within the party and without crossing 'Lakshman Rekha' is not an act of defection.
As many as six petitions related to disqualification proceedings, the election of Speaker, recognition of party whip and the Governor's decision to order floor test came up for hearing before the top court.
On July 11, the top court had asked the newly appointed Maharashtra Assembly Speaker not to go ahead with proceedings in disqualification petitions.
On June 29, the court refused to stay the Maharashtra Governor's direction to hold a floor test in Assembly on June 30, in an endgame to the Thackeray-led Maha Vikas Aghadi government, after a rebellion by Eknath Shinde and 48 other MLAs.
After Shinde was sworn in as the chief minister on June 30, Prabhu moved to the top court seeking his suspension and that of 15 Sena rebels on various grounds, alleging that they were acting as pawns of the BJP, thereby committing the constitutional sin of defection.