Shiv Sena Rift | If Speaker Can Disqualify When Resolution For His Removal Is Pending, Would It Not Affect His Impartiality?Supreme Court Asks

A constitution bench of the Supreme Court commenced hearing the pleas concerning the constitutional issues arising out of the rift within Shiv Sena party between Eknath Shinde and Uddhav Thackeray groups. In yesterday's hearing, the bench heard arguments on why the judgement in Nabam Rebia v. Deputy Speaker (2016) should be referred to a seven-judge bench of the Supreme Court. In Nabam Rebia, a 5-judge bench ruled that a Speaker cannot initiate disqualification proceedings when a resolution seeking his removal is pending. The bench comprising CJI DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha heard the matter. 

At the outset, Senior Advocate Harish Salve, appearing for the Eknath Shinde faction, raised a preliminary issue stating that the reference of the judgement in Nabam Rebia v. Deputy Speaker as requested by Senior Advocate Kapil Sibal, who was appearing on behalf of the Uddhav Thackeray faction (petitioners), should not be considered as the petitioners had themselves relied upon the said judgement at various stages and now were challenging the same judgement. CJI DY Chandrachud, taking a note of the same, stated that the bench would bear it in mind. 

This was followed by Senior Advocate Kapil Sibal commencing his arguments. His primary argument was that as per the judgement in Nabam Rebia, as soon as a notice of resolution for the removal of the Speaker is moved, the Speaker can no longer continue his function in the assembly and cannot act as a tribunal under the Tenth Schedule. This, he stated resulted in the toppling of governments. He said–

"Nabam Rebia says that when a notice is given to speaker seeking his removal, the moment it is issued, he cannot act as tribunal under Tenth Schedule. Constitutional authorities cannot be at hiatus at any time- may it be parliament, government or anything. His function as a tribunal also stops. So you topple the government, swear in the Chief Minister and you have your own speaker. History has seen that speakers always support their own political parties."

He added that a notice for removal of a speaker shall only be issued when the legislature was in session. To elaborate upon his reasoning, he said–

"I issue a notice to speaker. I may not have any intention of taking it forward but I issue it. Leave is sought from the house whether the individual can move it or not. If 29 members don't approve, the resolution is dropped. Till the resolution is moved, there is no motion against the speaker but the moment the notice is issued, the speaker cannot sit!...Why did we have the tenth schedule? To serve the cause of political morality. Now this very schedule is subverting that, it is being misused...A notice for removal of the speaker should only be moved when the house is in session. That will prevent all malpractice that takes place. Otherwise you can topple governments at your will, knowing our politics. If notice can only be issued when house is in session and within 7 days it has to be decided, this won't happen. It's a constitutional office. There can be no hiatus, there can be no pause."

Justice Hima Kohli, seeking clarity on his submission, asked–

"So your submission is that the whole process shall be finished in that session?"

Senior Advocate Sibal responded–

"Any one member can move the notice. See the consequence of it – he may move the notice and have no intention, he may move the notice even when the legislature is not in session? So the assembly goes on but the tenth schedule is constitutionally paused."

At this juncture, CJI DY Chandrachud asked–

"On the flip side, if we permit the speaker to participate even when the grant of leave is crossed - what would be the consequence? What is worrying is that on the other hand you're saying that he can take all actions till motion is put. The consequence is then that he can decide and can then effectively affect the course of his own removal. This is the only thing which is worrying. By giving the power to speaker, are we giving him power to affect course of his own removal? If the speaker is allowed to disqualify, it will affect his impartiality."

To this, Senior Advocate Sibal responded–

"If I'm holding a constitutional office, my impartiality is assumed. As far as that is concerned, that is subject to judicial review. If the disqualification is on wrong basis, they can come to judiciary."

When Justice MR Shah stated that the judiciary could take time to decide upon the issue and what would the house do till then, Senior Advocate Sibal said–

"Why would court take time? Courts should not take time. That happens in every case of disqualification. What's the difference in that and the case your lord is asking? Ultimately, if the speaker is removed, he's only removed from the office. But if the elected government is toppled, the harm to politics is much greater."

Senior Advocate AM Singhvi also advanced his submissions and stated that the the words "under consideration" under Article 181 of the Indian Constitution could only be inferred one way. He said–

""Under consideration" in Article 181 can only be inferred in one way. The word sitting is daily sitting, not a session so it relates to a day. So under consideration means it's the day of the resolution."

He added–

"Nabam Rebia states that mere notice can disable the speaker. This legalises it to disable the speaker who has no standing and now the Tenth schedule is frozen. Constitutional balancing and harmony is the most important thing."

The hearing will continue today.