Shiv Sena Case : Supreme Court Refers 'Nabam Rebia' Judgment To Larger Bench; Says It Is In Conflict With 'Kihoto Hollohan’ Judgment

A Bench comprising CJI DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha also laid down the procedure that is to be adopted pending the decision of the larger Bench.

(i) The Speaker is entitled to rule upon and decide applications questioning their jurisdiction; and

(i) The Speaker is entitled to rule on applications which require them to refrain from adjudicating proceedings under the Tenth Schedule on the ground of initiation of a motion for their removal under Article 179(c). A Speaker can examine if the application is bonafide or intended only to evade adjudication;

(iii) If the Speaker believes that the motion is well founded, they may adjourn the proceedings under the Tenth Schedule till the decision for their removal is concluded. On the other hand, if they believe that the motion is not as per the procedure contemplated under the Constitution, read with the relevant rules, they are entitled to reject the plea and proceed with the hearing; and

(iv) The decision of the Speaker, either to adjourn the proceedings under the Tenth Schedule in view of the pending proceedings under Article 179(c) or to proceed with the hearing will be subject to judicial review. As the decision of the Speaker relates to their jurisdiction, the bar of a qua timet action, as contemplated in Kihoto Hollohan will not apply.

In Nabam Rebia, a Constitution Bench of the Apex Court had held that it is impermissible for a Speaker to adjudicate upon disqualification petitioners under the Tenth Schedule after a notice of intention to move a resolution for the removal from office is issued. Senior Advocates, Kapil Sibal, Abhishek Manu Sighvi and Devadatt Kamat appearing on behalf of the petitioners submitted that the judgment in Nabam Rebia be referred to a large Bench of seven judges. Senior Advocates, Harish Salve, Neeraj Kishan Kaul, Mahesh Jethmalani, Maninder Singh and Siddharth Bhatnagar appearing for the respondents along with Solicitor General of India, Tushar Mehta appealing for the Governor of Maharashtra opposed the plea seeking reference. In an order dated 17.02.2023, the Court had directed that the issue of reference is to be determined along with the merits of the case.

Nabam Rebia Decision Should Be Reviewed As It Has Great Mischief Potential : PDT Achary

Submissions made by the parties

The Senior Counsels for the petitioners argued that the decision in Kihoto Hollohan v. Zachillhu and that in Nabam Rebia are in conflict. In Kihoto Hollohan, another Constitution Bench had held that the Court cannot generally interfere in disqualification proceedings at an interlocutory stage. However, as per Nabam Rebia, the disqualification proceedings would be prohibited about the issuance of notice of intention to move a resolution for the removal of the Speaker, amounting to interference with disqualification proceedings at interlocutory stage. As per the petitioners the decision in Nabam Rebia can be misused by defecting MLAs in avoiding disqualification by disabling the Speaker from proceeding with the disqualification proceedings. However, in such a situation the Speaker would be left remediless. It was argued that the decision in Nabam Rebia creates a constitutional hiatus in the operation of the Tenth Schedule. Furthermore, it was averred that decision in Nabam Rebia indicates that the composition and strength of the House cannot be altered once a notice of intention to move resolution for removal of the Speaker is issued, which is in the teeth of Articles 179, 181 and Constitutional Assembly Debates. The Senior Counsels for the petitioners also pointed out that the disqualification of MLAs would relate back to the date on which they indulged in the conduct prohibited under the Tenth Schedule. Therefore, it would not be permissible for the disqualified MLAs to issue the notice for removal of the Speaker after the date they had indulged in the proscribed conduct.

The Senior Counsels appearing for the respondents argued that the decision in Nabam Rebia was based on ethical and constitutional considerations. They submitted that if an MLA is unjustly disqualified by the Speaker and their disqualification is set aside by the Courts they would have been deprived of the opportunity to vote on the resolution for removal of the Speaker, whereas if the Speaker is unjustly removed from office they do not lose membership of the House and can participate in proceedings. It was argued that the decision in Kihoto Hollohan is an exception and not the rule. According to the respondents, the disablement of the Speaker from deciding disqualification petitions upon issuance of notice of intention for their removal does not amount to interference at the interlocutory stage. The Solicitor General opposed the reference on similar grounds.

Analysis by the Supreme Court

As per Article 179, a Speaker may be removed from office by a resolution passed by a majority of “all the then members of the Assembly”. In the judgment in Nabam Rebia Justice Khehar had elaborated on the meaning of the phrase “all the then members of the Assembly”. At the Constituent Assembly, Mohd Tahir had proposed to substitute the said phrase with “the members of the Assembly present and voting”, which was not affirmed. Justice Khehar had noted that the Constituent Assembly Debates did not record any discussions on this proposed amendment. Accordingly, the Judge had inferred that the phrase was used to indicate definiteness and as per Article 179(c), there should not be any change in the composition of the Assembly when the notice of intention to move a resolution for the removal of the Speaker was pending. He had further observed that if the Speaker decided a disqualification petition before surviving the vote, it would prejudice the MLAs facing the disqualification as they would not have a right to participate in the motion moved against the Speaker even if their disqualification was later set aside. This eventuality, he noted, can be avoided if the disqualification petitions are taken up after the motion against the Speaker is put to vote. Affirming this opinion, Justice Misra noted that if the Speaker is allowed to alter the composition of the Assembly by deciding the disqualification petitions, it would result in a constitutional conflict between the role of the Speaker as a Tribunal and that of the Speaker as the presiding member of the Assembly.

The Court referred to the factual context in the present case. A notice under Article 179(c) was issued on 21th June, 2022 asking the Deputy Speaker to refrain from discharging his functions. The Deputy Speaker had responded that it was imperative that the genuineness of the communication be verified and one after checking the authenticity the same be taken on record. The Court noted that it is evident that the Deputy Speaker had decided not to take cognisance of the said notice. On 25th June, 2022, the Deputy Speaker issued summons to MLA for disqualification asking them to file written submission by 27th June, 2022. The 16 MLAs who were summoned approached the Apex Court. One of the contentions raised was that in terms of the judgment in Nabam Rebia, the Speaker was precluded from proceedings with the disqualification proceedings. The Constitution Bench noted that the Division Bench of the Apex Court did not injunct the Deputy Speaker from hearing the case, showing intention that the proceedings before the Deputy Speaker was to go on. Eventually, the Speaker was appointed and it fell to them to decide the disqualification petitions. Considering the factual conspectus, the Constitution Bench clarified that the Nabam Rebia judgment does not apply to the present case. However, the Court noted that previously it had formed a prima facie opinion that the position of law laid down in Nabam Rebia was based on contradictory reasoning which requires gap filling to uphold the constitutional morality.

Based on the submissions made by the petitioners in favour of the reference, the Constitution Bench was convinced that the decision in Nabam Rebia merits reference to a larger Bench because a substantial question of law remains to be settled.

Reasons for the reference

1. Nabam Rebia is in conflict with the judgment in Kihoto Hollohan;
2. The phrase “all the then members of the Assembly” was interpreted to mean that the composition of the Assembly ought not to be changed after notice of intention to move a resolution for the removal of the Speaker (Deputy Speaker) was issued. In the Constitution Assembly Debates the phrase” all the then members of the Assembly” occurring in other provisions of the Constitution were clarified to indicate all members who are members of Parliament and whose seats are not vacant. Therefore, it does not mean members sitting or present and voting.
3. Article 181 contemplates that the Speaker shall not preside over a sitting of the Assembly while a resolution for their removal is under consideration. Nabam Rebia did not consider whether the Constitution envisages imposition of any further restriction than the one contemplated in Article 181.
4. Nabam Rebia did not consider if the Constitution envisages a restriction on the continuous performance of the functions of the Speaker under the Tenth Schedule in view of second proviso to Article 179.
5. The possibility that the notice of intention to move a resolution for the removal of the Speaker might not ultimately culminate into such a motion being moved was not considered by the Court in Nabam Rebia. As per Rule 11 of the Maharashtra Legislative Assembly Rules leave is granted to move the motion only when twenty-nine members vote in favour of it. However, the decision in Nabam Rebia as it stands today bars the Speaker from adjudicating disqualification petitions based on the mere issuance of the notice of intention to move a resolution even by one member of the House.
6. Nabam Rebia did not consider if the disablement of the Speaker to proceed with the disqualification proceedings was prone to be misused by MLAs against whom disqualification petitions are instituted.
7. Nabam Rebia did not consider if a constitutional hiatus in the operation of the Tenth Schedule would ensue because of the disablement of the Speaker.

Case details

Subhash Desai v. Principal Secretary, Governor of Maharashtra And Ors.| 2023 SC LiveLaw | 11th May, 2023| CJI DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha

Case Title: Subhash Desai v. Principal Secretary, Governor of Maharashtra And Ors. WP(C) 493/2022

Citation : 2023 LiveLaw (SC) 422

Click here to read the judgment