'Nabam Rebia Decision's Reasoning Prima Facie Contradictory' : Read Issues Referred To Supreme Court Constitution Bench In Shiv Sena Dispute

The Supreme Court bench comprising Chief Justice N.V. Ramana, Justice Hima Kohli and Justice Krishna Murari has referred the dispute between Uddhav Thackeray and Eknath Shinde factions of Shiv Sena to be decided by a Constitution Bench. 

While referring the matter to a larger bench, the bench led CJI Ramana noted that it was important to settle the issue relating to the power of the Speaker/Deputy Speaker to initiate disqualification proceeding when such proceedings had been initiated against him. In this context, the bench expressed doubts about the law laid down in the 2016 decision in the Nabam Rebia case that a Speaker cannot initiate disqualification proceedings when his removal is sought.

The bench stated that–

"The proposition of law laid down by the constitutional bench in Nabam Rebia..... stands on contradictory reasons, which requires gap filling to uphold the constitutional morality. As such, the question is referred to a constitutional bench for the requisite gap filling exercise to be conducted."

It was stated that a bench of five judges was to look into this matter along with other substantial questions of law as per the interpretation of the Constitution, including:

A. 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;

B. Whether a petition under Article 226 and Article 32 lies inviting a decision on a disqualification proceeding by the High Courts or the Supreme Court as the case may be;

C. Can a court hold that a member is deemed to be disqualified by virtue of his/her actions absent a decision by the Speaker?

D. What is the status of proceedings in the House during the pendency of disqualification petitions against the members?

E. If the decision of speaker that a member was incurred disqualification under the Tenth Schedule relates back to the date of the complaint, then what is the status of proceedings that took place during the pendency of the disqualification petition?

F. What is the impact of the removal of Para 3 of the Tenth Schedule? (which omitted "split" in a party as a defence against disqualification proceedings)

G. What is the scope of the power of the Speaker to determine the whip and leader of house of the legislative party?What is the interplay with respect to the provisions of the Tenth Schedule?

I. Are intra-party questions amenable to judicial review? What is the scope of the same?

J. Power of the governor to invite a person to form the government and whether the same is amenable to judicial review?

H. What is the scope of the powers of Election Commission of India with respect to deter an ex parte split within a party.

After the order was dictated, Senior Advocate Kapil Sibal, representing the Uddhav group, requested that the proceedings initiated by Eknath Shinde before the Election Commission of India for recognition as the official "Shiv Sena" be stayed.

The bench said that the Constitution Bench will assemble on August 25 to consider this interim relief.

All these matters have to be decided by a larger bench of the Supreme Court in a matter listed for 25th August 2022.The CJI stated that till the larger bench hears the matter, the Election Commission was not to take any actions. 

The bench was hearing the following petitions related to the crisis:

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

Citation : 2022 LiveLaw (SC) 697

Headnotes

Constitution of India - 10th Schedule - Anti-defection law - Supreme Court refers to Constitution Bench questions relating to Speaker's powers for disqualification proceedings- Questions referred in dispute between Uddhav Thackeray and Eknath Shinde over rift within Shiv Sena party - Prima facie doubts the law laid down in Nabam Rebia & Bamang Felix versus Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1.

Click here to read/download the order