The Shiv Sena (UBT) has once again knocked on the doors of the Supreme Court seeking a direction to the Maharashtra assembly speaker to expeditiously adjudicate the disqualification petitions filed against Chief Minister Eknath Shinde and other Sena MLAs, who had tied up with the Bharatiya Janata Party to form a new government in June 2022, in a time-bound manner.
The plea by Shiv Sena (Uddhav Balasaheb Thackeray) MLA Sunil Prabhu, who as chief whip of the undivided Shiv Sena had in 2022 filed the disqualification petitions against Shinde and other MLAs, alleged that Speaker Rahul Narwekar is deliberately delaying the adjudication despite the May 11 verdict of the apex court.
"The petitioner is constrained to invoke the extraordinary jurisdiction of this court under Article 32 of the Constitution of India, in light of the respondent speaker's conduct in choosing to deliberately delay the adjudication of the disqualification petitions filed by the petitioner against the delinquent members of the Maharashtra legislative assembly," the plea, filed through advocate Nishanth Patil and Amit Anand Tiwari, said.
The plea said the speaker, despite the categorical direction of the top court in its May 11 judgment that the pending disqualification petitions must be decided within a reasonable period, has chosen to not conduct a single hearing.
"The petitioner has also sent more than three subsequent representations dated May 15, 2023, May 23, 2023 and June 2, 2023 to convene a hearing in the said disqualification matters, however, the respondent speaker in brazen disregard to his constitutional duties as a neutral arbiter, has sought to delay the adjudications of the disqualification petitions, thereby permitting the illegal continuance of Eknath Shinde as chief minister, against whom the disqualification petitions are pending," it said.
Prabhu, in his petition said, "Therefore, it is imperative for this court to direct the speaker, Maharashtra legislative assembly, to decide the disqualification petitions filed by the petitioner against delinquent members of the Maharashtra legislative assembly expeditiously, within a time-bound manner."
He sought direction to the speaker to decide the disqualification petitions dated June 23, 2022, June 25, 2022, June 27, 2022, July 3, 2022, and July 5, 2022 filed by him under provisions of the 10th Schedule against the MLAs loyal to Shinde expeditiously and in a time-bound manner, preferably within a period of two weeks.
In his plea, Prabhu said it is a settled law that the speaker, while performing his functions under the 10th schedule, which deals with the anti-defection law, acts as a judicial tribunal, and is required to act in a fair and unbiased manner.
"The constitutional requirement of fairness enjoins upon the Speaker the obligation to decide the question of disqualification in an expeditious manner. Any unreasonable delay on the part of the Speaker in deciding the petitions for disqualification contributes to and perpetuates the constitutional sin of defection committed by the delinquent members," the petition said.
Prabhu said in the present case, the delinquent MLAs against whom disqualification petitions are pending, have committed brazenly unconstitutional acts which per se invite disqualification under Paras 2(1)(a), 2(1)(b), and 2(2) of the 10th Schedule.
"The speaker's inaction in deciding the disqualification proceedings is an act of grave constitutional impropriety as his inaction is allowing MLAs who are liable to be disqualified to continue in the assembly and to hold responsible positions in the government of Maharashtra including that of the chief minister," the plea said.
It said the continuance of this grave political crisis is in stark violation of the top court's decision in Rajendra Singh Rana (2007 verdict) where it has held that continuance of disqualified MLAs in the assembly, even for a day, as well as their holding office as ministers would be illegal, and an affront to constitutional values and democratic principles.
Referring to the 1992 verdict in Kihoto Hollohan versus Zachillhu case, the plea said it was held that the speaker occupies a constitutional office, and is required to rise above their political affiliations while performing the duties of the office.
"In the context of tenth schedule, the Speaker is required to conduct themselves in a fair and impartial manner, as they function as a tribunal. However, in the present case, the present incumbent speaker, the respondent, has clearly demonstrated by his inaction that he is incapable of discharging the function of the speaker under the 10th Schedule in a fair and unbiased manner," it said.
The plea referred to the SC's 2016 Nabam Rebia ruling which said the speaker has to maintain propriety and his conduct should be perceptibly impartial while exercising the powers of constitutional adjudication under the 10th Schedule.
"However, in the instant case, the conduct of the respondent is demonstrably partial and reeking of bias, contrary to the constitutional expectations from his office," it said.
In its 2020 verdict in the Keisham Meghachandra Singh versus Manipur legislative assembly speaker case, the apex court had ruled that the disqualification petitions under the 10th Schedule should normally be decided within a period of three months from the date of filing of the petition to adhere to the constitutional objective behind the 10th Schedule, it said.
"The present incumbent Speaker, the respondent, has clearly demonstrated by his inaction that he is incapable of functioning as a fair and unbiased tribunal under the 10th Schedule, as required by law," the petition said.
On May 11, the top court had ruled that Eknath Shinde will continue to be the chief minister of Maharashtra as it cannot reinstate the MVA coalition government headed by Uddhav Thackeray since the Shiv Sena leader chose to resign without facing a floor test in the wake of a rebellion in his party.
The unanimous verdict by a five-judge Constitution bench had come as a relief for Shinde even as it censured former Maharashtra governor Bhagat Singh Koshyari over his decision calling upon Thackeray to prove his majority in the assembly based on a request by the Shinde faction of the Sena.
Shinde, who led the rebellion in the Shiv Sena against Thackeray sparking a nine-day political crisis in June last year, later tied up with the BJP to form a government.
Refusing to disqualify the 16 rebel Shiv Sena MLAs including Shinde, the bench headed by Chief Justice D Y Chandrachud had said the court cannot ordinarily adjudicate disqualification petitions under the anti-defection law, and directed Speaker Rahul Narwekar to take a decision on the pending matter within a "reasonable period."
