Shiv Sena Rift : Should "Nabam Rebia" Decision Be Reconsidered By Larger Bench? Supreme Court Constitution Bench Reserves Judgment

A Constitution Bench of the Supreme Court on Thursday reserved judgment on whether the judgment delivered by a 5-judge bench in the case Nabam Rebia vs Deputy Speaker (2016) should be reconsidered by a larger bench.

A 5-judge bench led by Chief Justice of India DY Chandrachud was hearing a bunch of petitions relating to the political developments in Maharashtra, which resulted in a change of State Government in July 2022, following a rift within the Shiv Sena party between Uddhav Thackeray and Eknath Shinde groups. The bench, also comprising Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha, heard arguments on the need for reference for three days.

Nabam Rebia had held that a Speaker will be disabled from deciding disqualification petitions under the anti-defection law (10th schedule of the Constitution) if a notice under Article 179(c) of the Constitution for removal is pending. The correctness of this view has been called into question in the present matter by the lawyers representing Uddhav group. The stand of the Shinde side is that no reference is required.

The Nabam Rebia principle was invoked in this case by the Shinde group to argue that the Deputy Speaker cannot proceed under tenth schedule against the dissident MLAs as a notice seeking his removal is pending. On June 27, 2022, a vacation bench of the Supreme Court had extended the time for the Shinde camp MLAs to respond to the Deputy Speaker's notice under 10th schedule till July 12. The next day, the Governor asked the Uddhav Thackeray government to seek trust vote on June 30. On June 29, the vacation bench of the Supreme Court refused to stall the trust vote. Following that, Uddhav Thackeray announced his resignation as the Chief Minister.

In August 2022, a 3-judge bench referred 11 issues in the case to 5-judge bench, including the correctness of Nabam Rebia. The 3-judge bench prima facie observed that the reasoning in Nabam Rebia was contradictory.

Arguments before 5-judge bench

Senior Advocates Kapil Sibal, Dr Abhishek Manu Singvhi and Devadatt Kamat, representing the Uddhav side, essentially argued that Nabam Rebia decision enables defecting MLAs to stall disqualification proceedings against them by simply issuing a notice seeking Speaker's removal. On the other hand, Senior Advocates Harish Salve, Neeraj Kishan Kaul, Mahesh Jethmalani, Maninder Singh and Siddharth Bhatnagar, appearing for the Shinde group, opposed the need for reference. Solicitor General of India Tushar Mehta, appearing for the Governor, also opposed the need for reference.

The Shinde group lawyers argued that allowing a Speaker to decide disqualification, when he himself is facing a resolution for removal, will violate principles of natural justice because the Speaker can then change the composition of the house by expelling members and thereby ensure the defeat of the motion against him.

During the hearing yesterday, Chief Justice of India DY Chandrachud had observed that it was a "tough constitutional issue" and acknowledged that both points have compelling reasons. The CJI also observed that both views have serious ramifications for the polity.

Uddhav Thackeray vs Eknath Shinde : Why Supreme Court Said It's A Tough Constitutional Issue To Decide?

Issue is merely academic : Shinde side

In the rejoinder arguments today, Jethmalani argued that Nabam Rebia issue was merely "academic" and did not arise in the facts of this case at all. He pointed out that the notice for resolution of Deputy Speaker's removal did not attain finality. The Chief Minister also resigned before the trust vote. So, the facts of the case do no support the need for reference. Maninder Singh argued that Nabam Rebia laid down the correct law.

'Speaker should be disabled from deciding disqualification the moment notice for removal is received'

There were arguments in the case regarding the moment from which Speaker will face disability. It was the argument of Uddhav side that a mere notice under Article 179(c) will not disable the Speaker. The notice has to be admitted in the house and put on vote. It is only during the voting process that the Speaker is disabled from presiding the session. Singh argued that the the process starts from the removal of notice itself.

"So Maninder Singh, according to you, the bar on the Speaker in entertaining the petition for disqualification must  attach once a notice for intention to remove the Speaker is sent for the following reasons, first, that the Speaker is acts as an adjudicator under the tenth schedule, second there is a finality to his adjudication and third the consequence of the adjudication is that the MLA loses his seat. And these are very serious consequences", CJI summarised Singh's argument.  

Removal notice was a "mischief" to stall disqualification : Sibal's rejoinder

In rejoinder, Kapil Sibal stated that the notice against the Speaker was sent pre-empting the disqualification notice. Narrating the chronology of events, he pointed out that the notice for Deputy Speaker's removal was dated June 21 and was received by his office on June 22. Sibal said that the notice asked the Deputy Speaker to refrain from taking action under tenth schedule in view of Nabam Rebia decision. However, on that day, the disqualification notices were yet to be sent to the dissidents. They were sent only on June 23.

Therefore, the removal notice was a "mischief" intended to paralyse the whole process, Sibal contended. He denied that the issue was "academic" by highlighting that the June 27 order was obtained by the other side by referring to Nabam Rebia judgment. The June 27 order catapulted the events leading to the Government's fall, the senior lawyer underscored.

Sibal argued that Nabam Rebia was giving a scope for abuse of the Constitutional provisions to topple lawfully elected governments.

"This issue will arise time and again. Elected governments will be toppled. No democracy cannot afford it. So please don't say this is academic. I beg of you. Do not allow 10th schedule to topple a government. My submission is don't allow the decision to be used to topple a legally elected govt. You are disabling Speaker and toppling the Govt", Sibal argued.

There is no defence of majority in tenth schedule : Sibal

Sibal further argued that tenth schedule does not allow a defence that the dissidents constitute a majority. The only defence is that of a merger with another party, which has not happened in the case. 

"Even if the CM is in minority, assuming so, they are still liable to disqualification. You go out of house, face election and come back", Sibal said.

When the CJI observed that the June 27 order of the Court was perhaps passed in view of the fact that the Speaker has allowed only 2-days notice, Sibal said that Speaker has the discretion to give a shorter notice if the situation is that urgent. In this context, Dr.Abhishek Manu Singhvi said that the law only envisages giving a reasonable and effective opportunity. He referred to Shrimant Patil decision to say that there, the Supreme Court approved the Speaker giving 3 days notice though the legislative rules mandated 7 days notice.

A notice for Speaker's removal should specify reasons

Sibal also argued that a notice seeking Speaker's removal should specify reasons and it cannot be a mere expression of "no-confidence".

"The notice should be specific to charges. Because it involves a stigma. The Constitution uses the word "removal". It is not a "no-confidence". So, it is not a notice in the eye of law. This petition could not have been even filed", he argued.

The Eknath Shinde faction was represented by Mr. Harish Salve, Mr. Neeraj Kishan Kaul, Mr. Mahesh Jethmalani, Mr. Maninder Singh - Senior Advocates along with Mr. Chirag Shah, Mr. Utsav Trivedi, Mr. Himanshu Sachdeva, Ms. Manini Roy and Mr. Piyush Tiwari, Advocates from M/s. TAS Law (Advocates on Record)

Case Title : Subhash Desai versus Principal Secretary, Governor of Maharashtra and others | W.P.(C) No. 493/2022 and connected cases