A view of Supreme Court of India.
| Photo Credit: Today News 24
The Supreme Court on Friday, February 17, 2023, decided to hear the merits of a bitter political battle between rivals, Maharashtra Chief Minister Eknath Shinde and his predecessor Uddhav Thackeray, for control over Shiv Sena and not digress from the factual aspects of the dispute for now by referring to a seven-judge Bench a legal question based on a 2016 judgment.
During the hearing of the case, Mr. Thackeray’s camp had questioned the correctness of a legal principle laid down by a Constitution Bench in Nabam Rebia case in 2016 that a Speaker facing a notice of resolution for his removal cannot decide disqualification proceedings against legislators under the anti-defection law (Tenth Schedule) without first clearing his name.
Senior advocate Kapil Sibal, for Mr. Thackeray, had contended that the principle in the Nabam Rebia case had to be referred to and re-examined by a large Bench of seven judges before proceeding with the hearing on the merits of the Shinde-Thackeray dispute.
He had argued that the principle tied the hands of the Speaker, making him unable to function as a Tribunal under the Tenth Schedule while giving free play to horse-trading in the House.
He had pointed to how the Shinde group, facing disqualification proceedings last year before Thackeray government fell, had taken advantage of the Nabam Rebia judgment to stonewall then Deputy Speaker Narhari Zariwal by issuing a notice for his removal from the post.
The Thackeray camp urged a five-judge Bench led by Chief Justice of India D.Y. Chandrachud, which is hearing the dispute, to refer the legal question to a larger Bench before continuing with the examination of the merits of the case at hand.
Reference to larger Bench
Differing with Mr. Sibal’s point of view, the five-judge Bench on Friday said it cannot make such a reference in the “abstract”. Reading out the short order, Chief Justice Chandrachud said the question of reference to a larger Bench cannot be “isolated or divorced” from the facts of Shinde-Thackeray quarrel.
“Whether the principle formulated in the Nabam Rebia judgment has an impact upon the factual position of the present case needs deliberation. In the above backdrop, the issue whether the reference of the decision in the Nabam Rebia judgment to a larger Bench is warranted would be determined together with the merits of the case,” Chief Justice Chandrachud pronounced the order for the Bench.
The apex court listed the case for hearing on merits on February 21.
The five-judge Bench led by Chief Justice of India DY Chandrachud was hearing a series of petitions following the political crisis which rocked Maharashtra when current Chief Minister Shinde and his camp of followers rebelled against then Chief Minister Thackeray and eventually brought down the Maha Vikas Aghadi government in early 2022.
Mr. Sibal said the legislators are misusing the Nabam Rebia judgment to stultify the Tenth Schedule, leading to the “destruction of democracy”.
“The Nabam Rebia judgment stops a Speaker from acting as a Tribunal under the Tenth Schedule the moment he himself receives a notice for his removal… This has now become a device legislators are employing to stall their disqualification. Meantime, politics takes over. The government falls. A new Chief Minister is appointed with the support of the rebel legislators. A new Speaker is installed and the disqualification proceedings are in limbo…” Mr. Sibal had submitted.
The Shinde camp and even the Maharashtra Governor had countered that the Tenth Schedule was an anti-defection law and not an “anti-dissent law”.
On Wednesday, Chief Justice Chandrachud had said the 2016 judgment raised “tough” constitutional issues.
On one hand, the judgment incapacitated a Speaker/Deputy Speaker from functioning as a Tribunal under the Tenth Schedule until his position was ratified by the House.
“Meanwhile there would be a free flow of human capital from one political party to another,” Chief Justice Chandrachud had said.
On the other hand, allowing a Speaker or Deputy Speaker, who is himself under threat of losing his position in the House, to function as a Tribunal, may lead to bias. It could even allow the leader of a political party to cling on to power despite losing the faith of his or her flock.
“This would facilitate a leader of a political party to hold on to the status quo though he or she has really lost his or her leadership over a group of legislators… Both ends have very serious consequences,” the CJI had remarked.
