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Thursday, February 22, 2024

Maha pol crisis: SC declines reference to a 7-Judge bench for reconsideration of its 2016 Nabam Rebia judgment

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 Supreme Court in its order declines reference to a 7-Judge bench for reconsideration of its 2016 Nabam Rebia judgment that had restrained a speaker, facing a notice on motion for his removal, from deciding disqualification petitions against MLAs under the anti-defection law.

Supreme Court in its order held that the issue of whether Nabam Rebia judgment be referred to larger bench of 7 judges or not can only be decided along with hearing merits of the Maharashtra Politics case and thus hearing now on Merits will be on Feb 21.

The Supreme Court in its order said that the question of reference to 2016 Nabam Rebia judgement to 7-judge can’t be decided in ‘abstract manner, isolated and divorced from facts of the case’.

So the Apex Court decided to go ahead with the hearing on legal issues arising out of Maharashtra crisis from Tuesday, February 21.

Supreme Court’s five-judge Constitution bench had yesterday reserved its verdict on whether to refer the cases related to the Maharashtra political crisis to a larger seven-judge or nine-judge bench for reconsideration of a 2016 Nabam Rebia judgment on the powers of Assembly Speakers to deal with disqualification pleas.

A five-judge constitution bench of the Supreme Court, headed by the Chief Justice of India (CJI) Dr Dhananjaya Yeshwant Chadrachud, had reserved the judgment, yesterday, after hearing detailed arguments and submissions from Eknath Shinde, Uddhav Thackeray, State Assembly Speaker side and others.

The Apex Court had reserved the judgment yesterday on if 5-judge Nebam Rebia judgment required to be reviewed by a larger 7 or 9 judge bench.

The Apex Court’s other four judges, besides CJI, who were part of the forum were: Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha.

Uddhav Thackeray faction of Shiv Sena sought that five-judge Nabam Rebia case be referred to seven judge bench for reconsideration.

In 2016 Nabam Rebia case, the five-judge Constitution bench of the Supreme Court, had held that Speaker cannot initiate disqualification proceedings when a resolution seeking his removal is pending.

Senior advocate Kapil Sibal appearing for Uddhav Thackeray camp, had submitted that there is an imperative need to reconsider the law laid down in Nabam Rebia case.

“It’s time for us to relook at Nabam Rebia and the 10th Schedule because it has created havoc,” Sibal had said.

Sibal had sought a direction for reference to a larger bench for reconsideration the 2016 judgement by a seven-judge bench.

Senior advocate Neeraj Kishan Kaul, appearing for Eknath Shinde group, had said, there was no need for a reference of Rebia judgement to a larger bench.

Senior advocate Harish Salve, also for Shinde group, had said anti defection law is not a weapon for a leader who has lost faith.

“There are layers of political morality in all of this and it is best the court stay away from all of this, these are complex questions,” he had said, maintaining that anti defection law can not be used as anti-dissent law.

Opposing the plea for reference, Salve had said there are delicate constitutional issues which arose on case to case basis and dealt with.

Referring to facts of the case, he said, on June 28, former Maharashtra CM Thackeray was asked to prove his majority on the floor of the House. On June 29, Sunil Prabhu, chief whip moved this court asking stay of this session, the Supreme Court declined it and Thackeray subsequently resigned.

He also had contended Rebia judgement had no role in the events that transpired in the state.

In his submission, Solicitor General Tushar Mehta, had said the contention by Thackeray faction that the observations in Nabam Rebia provided an escape route to “constitutional sinners” and that the judgement failed to consider the possibility of misuse for avoidance of disqualification proceedings by mere issuance of notice for removal of the Speaker, is wholly unsustainable.

“There is no graver “constitutional sin” than a minority government being in power and violate the democratic working of the Constitution and democratic election of the Government in power. The breach of democratic backing of government in power, would stand at a higher pedestal than all generic notions of constitutional morality amongst others. There no graver constitutional immorality than a minority Speaker enabling a minority government in power,” he had said.

A three-judge bench had on August 23, 2022 referred the matter to the Constitution bench after framing first issue whether notice for removal of a Speaker restricts him from continuing with disqualification proceedings under Tenth Schedule of the Constitution, as held by this court in Nabam Rebia case.

Thackeray’s Shiv Sena had suffered a blow after Shinde and other MLAs ousted their leader as the Chief Minister of Maharashtra.

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