BREAKING| Shiv Sena Rift : Supreme Court Defers Decision On Question For Larger Bench Reference, To Hear On Merits From Feb 21

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, 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.

"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"

"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.

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, 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.

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

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