5-judge bench may be needed to hear Maharashtra petitions: SC

NEW DELHI: The Supreme Court on Wednesday said the petitions by rival factions of Shiv Sena MLAs, filed during and after the flux leading to change of government in Maharashtra, raised serious constitutional questions which may require adjudication by a five-judge Constitution bench.
Appearing for the Uddhav Thackeray faction of Sena MLAs, senior advocate Kapil Sibal told the SC that if the anti-defection law is not applied to the Maharashtra model of switching loyalty by rebel party MLAs to illegally oust an elected government, then every elected government in states will be toppled.
Anti-defection law is being used to legitimise illegal act: Uddhav camp
Senior advocate Kapil Sibal, appearing for the Uddhav Thackeray faction of Shiv Sena MLAs, told the SC on Wednesday, "Parliament had enacted the Tenth Schedule to stop unholy defections and splits in parties. But in Maharashtra, they are using the anti-defection law to legitimise an illegal act through a series of unconstitutional decisions by the governor, followed by the speaker." He placed 11 propositions advocating disqualification of 40 rebel MLAs and quashing of governor's "illegal" decision to invite Eknath Shinde to form government, challenging the action of the speaker in recognising the rebel faction as the Shiv Sena.
Appearing for Shinde and his loyalist MLAs, senior advocate Harish Salve said the anti-defection law can't have any role in the inner party democratic dynamics. "Is the minority faction entitled to continue as legislature party when the majority of the Sena MLAs did not want Thackeray as their leader, consequently as CM? Can an MLA be disqualified for raising his dissenting voice? They do not challenge the Speaker's election, but ask the SC to quash his decisions terming his election as illegal," he said.
Senior advocate A M Singhvi, appearing for Subhash Desai, said the Speaker, while not proceeding with the disqualification petitions filed against the rebel MLAs, has now issued notices to Thackeray loyalist MLAs on disqualification petitions filed much later.
For the Shinde faction, senior advocate Mahesh Jethmalani said the resignation of Thackeray ahead of the trust vote changed the scenario. "Can the governor not invite any party which claimed majority on the ground that some MLAs are facing disqualification petition? These petitions are not maintainable at all. These petitions can be sent to a larger bench only after determining whether they are maintainable."
When Singhvi said the rebel MLAs committed a constitutional sin by defeating the mandate of the people, solicitor general Tushar Mehta said the original sin was committed by Sena, which contested the polls in alliance with a party with which it had an ideological equation and then broke the alliance to form an unholy alliance with other parties with diametrically opposite ideologies.
A bench of Chief Justice N V Ramana and Justices Krishna Murari and Hima Kohli asked the petitioners and respondents to file their propositions as well as responses by July 29.