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

While hearing the case related to the rift within the Shiv Sena party, a Constitution Bench of the Supreme Court on Wednesday orally observed that one of the issues is a "tough constitutional issue to decide".

One issue which has been referred to the Constitution Bench is the correctness of the view taken by the Supreme Court in its 2016 decision Nabam Rebia vs Deputy Speaker that a Speaker cannot initiate disqualification proceedings when a resolution seeking his removal is pending.

The Uddhav Thackeray faction, represented by Senior Advocate Kapil Sibal, has sought a reconsideration of Nabam Rebia decision by contending that it allows defecting MLAs to stall disqualification proceedings against them by simply sending a notice seeking the Speaker's removal. On the other hand, the Eknath Shinde faction, represented by Senior Advocates Harish Salve and Neeraj Kishan Kaul, opposed the need to reconsider Nabam Rebia, by arguing that the issue has become "academic" now, especially after the resignation of Uddhav Thackeray as the Maharashtra Chief Minister after realising that he will not pass the floor test.  The Shinde group lawyers also argued that a Speaker cannot be allowed to disqualify MLAs when he himself is facing a resolution for removal.

While hearing the matter, the bench led by Chief Justice of India DY Chandrachud commented that both the views regarding Nabam Rebia have serious consequences and hence it was a tough question to decide.

"It is a tough constitutional issue to answer for this reason that the consequences of both positions have very very serious ramifications for the polity", CJI said addressing Neeraj Kishan Kaul.

"If you take the Nabam Rebia position, it says, once the existence of Speaker itself comes under a cloud due to the issuance of a notice, then the Speaker should not decide upon the disqualification till his own continuation meets the ratification of the house. The consequence of that, as you have seen in Maharashtra, is to allow the free flow of human capital from one political party to another", CJI added.

Kapil Sibal then interjected to say that the CJI's expression "free flow of human capital from one political party to another" was "so well put".

Then, commenting about the other position, CJI said that adopting Sibal's argument could lead to a situation where a party leader who has lost majority can ensure a political status quo by asking the Speaker to disqualify the rival MLAs, despite the fact that Speaker himself is facing a resolution for removal.

"Now look at the other end.  If you say that notwithstanding the fact that the continuance of the Speaker is placed under cloud by the issuance of the notice he can still decide the disqualification notices, the consequence of that is, essentially, a leader of a political party who has lost his or her flock, he or she can then hold them down to the group, though as a matter of realpolitik he or she has lost the flock. So, adopting the other extreme would mean that you are really ensuring a political status quo though the leader has effectively lost his or her leadership. That is the other end, if we completely overrule Nabam Rebia. But if we hold Nabam Rebia, then also serious consequences are there, because then it is a free flow".

"So both ends, whichever way you accept it, have serious consequences. Both are not desirable", CJI added.

In response, Sibal said that in the instant case, the split took place within the legislature party, which is not recognized by the tenth schedule of the Constitution. The only defence under the anti-defection law is merger with another political party, which has not taken place. He added that using Nabam Rebia dictum, "one can split any party and form any government and the human capital will follow".

CJI agreed that the arguments of both sides on this issue have "compelling reasons".

The issue was referred to the Constitution Bench by a 3-judge bench led by the then CJI NV Ramana in August 2022. The reference is now before a bench comprising CJI DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha.

The first among the eleven issues referred to the Constitution Bench relates to the correctness of Nabam Rebia view. The issue has been framed as :

"Whether the notice of removal of the speaker restricts him from continuing the disqualification proceedings under Schedule X of the Indian Constitution as held by the Court in Nabam Rebia".

The hearing is progressing before the CB now. Follow live-updates from the Twitter thread given below :