Supreme Court: As the political battle in Maharashtra continues in Supreme Court, the Constitution bench of Dr. D.Y. Chandrachud, CJ., and M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha JJ., will recommence the hearing of the matter pertaining to the role and powers of the Deputy Speaker tomorrow i.e.,15-02-2023.
In the matter at hand, 5 writ petitions are filed before the bench concerning the controversy revolving around issues within the Shiv Sena Party between Eknath Shinde faction and Uddhav Thackeray led group who are allegedly in violation of provision of the Constitution of India.
1. Petition No.1- filed by the ‘rebel’ Shiv Sena leader and the current Chief Minister (‘CM’) of Maharashtra Eknath Shinde challenging the disqualification notice issued by the Deputy Speaker Narhari Zirwal and plea filed by Member of Legislative Assembly (‘MLA’) Bharat Gogawale and 14 other Shiv Sena MLA’s who sought to restrain the Deputy Speaker from taking action in the disqualification petition until the resolution for removal of Deputy Speaker is adjudicated.
2. Petition No.2- filed by member of the 14th Maharashtra Legislative Assembly and Chief Whip Sunil Prabhu challenging Maharashtra Governor’s direction to the CM to prove majority of Maha Vikas Aghadi Government.
3. Petition No.3- filed by member of the 14th Maharashtra Legislative Assembly and Chief Whip Sunil Prabhu, appointed by Uddhav Thackeray-led group, challenging the action of the newly elected Maharashtra Assembly Speaker recognizing the whip nominated by Eknath Shinde faction as the Chief Whip of Shiv Sena.
4. Petition No.4- filed by General Secretary of Shiv Sena Subhash Desai challenging the decision of the Maharashtra Governor to invite Eknath Shinde to be the CM of Maharashtra and further assailed the State Legislative Assembly proceedings on 03-07-2022 and 04-07-3033 as ‘illegal’ and arbitrary.
5. Petition No.5- filed by 14 MLAs of Uddhav Thackeray-led group challenging the initiation of illegal disqualification proceedings against them under the 10th schedule of the Constitution by the newly elected Speaker.
Senior Advocate Kapil Sibal appearing on behalf of the Uddhav Thackeray led-group argued that the matter needs to be referred to a 7-judge bench, to consider the accuracy of the 2016 judgment adjudicated by the Constitution bench in Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1 (‘Nabam Rebia’).
In Nabam Rebia, the Constitution bench in 2016 ruled that the Speaker could not initiate disqualification proceedings when a resolution seeking his removal is pending. The state of Arunachal Pradesh saw a rebellion of 20 Congress MLAs against the then CM Nabam Tuki. A total of 33 members of the Assembly expressed their displeasure regarding the Speaker and the ruling government to the Governor.
The Governor, without any discussion with the then CM, listed the removal of the Speaker on the legislative agenda. In reaction to the same, the speaker, Nabam Rebia, disqualified the ‘rebel’ MLAs on the grounds of defection even before the Assembly could assemble.
The Gauhati High Court, however, stayed the disqualification of the MLA’s. The Supreme Court in appeal, before the Constitution bench considered the question whether the Speaker could disqualify ‘rebel’ MLAs while a motion to remove himself was pending. Article 179(c) of the Constitution stated that the Speaker may be removed from office by a resolution of the Assembly passed ‘by a majority of all the then members.’ The Court stated that the Speaker’s act of disqualifying the rebel MLAs was an unconstitutional attempt to circumvent voting by ‘all the then members.’
It was further argued that the Nabam Rebia case was in violation of the judgment Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 in which the Constitution bench upheld the discretion available to the Speaker in deciding cases of disqualification of MLAs. It was also stated that the Speaker or the Deputy Speaker while deciding the disqualification Petition under the 10th Schedule was equivalent to a Tribunal, therefore there was an incumbent upon the Deputy Speaker to afford a reasonable opportunity of hearing.
Senior Advocate Kapil Sibal went on to argue that the ‘rebel’ MLA’s action was a misuse of the Nabam Rebia principle as this could mean that the disqualification proceedings could be stalled by merely sending a notice seeking the Speaker’s removal. He placed heavy reliance on Article 179 and 181 and the 10th Schedule of the Constitution of India.
“Mere issuance of Notice result in hiatus of Speaker. Speaker stops to act as a Tribunal under the 10th Schedule but continues to work as a Speaker of the house. This has become a device to stall the disqualification proceedings”.
Senior Advocates appearing on behalf of Eknath Shinde faction argued that the Deputy Speaker was incompetent to initiate the disqualification proceedings as a notice seeking his removal was pending.
On 23-08-2022, a full bench led by the then Chief Justice of India, N.V. Ramana had referred the issues pertaining to questions relating to interpretation of the 10th Schedule of the Constitution pertaining to disqualification, as well as the powers of the Speaker and the Governor and the power of judicial review thereof, to the 5-judge Constitution bench.
The following substantial questions of law were referred for consideration before the bench:
1. Whether notice for removal of a speaker restricts him from continuing with disqualification proceedings under the 10th Schedule of the Constitution, as held by this Court in Nebam Rebia case?
2. Whether a petition under Article 226 or Article 32 lies, inviting a decision on a disqualification petition by the High Courts or the Supreme Court, as the case may be?
3. Can a Court hold that a member is “deemed” to be disqualified, by virtue of his/her actions, absent a decision by the Speaker?
4. What is the status of proceedings in the House during the pendency of disqualification petitions against the members?
5. If the decision of a speaker that a member has incurred disqualification under the 10th Schedule relates back to the date of the action complained of, then what is the status of proceedings that took place during the pendency of a disqualification petition?
6. What is the impact of the removal of Paragraph 3 of the 10th Schedule?
7. What is the scope of the power of the Speaker to determine the Whip and the leader of the house legislature party? What is the interplay of the same with respect to the provisions of the 10th Schedule?
8. Are intra-party decisions amenable to judicial review? What is the scope of the same?
9. What is the extent of discretion and power of the Governor to invite a person to form the Government, and whether the same is amenable to judicial review?
10. What is the scope of the powers of the Election Commission of India with respect to determination of a split within a party?
Matter adjourned for hearing on 15-02-2023.
[Subhash Desai v. Governor of Maharashtra, Civil Writ Petition No. 493 of 2022, matter heard on 14-02-2023]
*Simran Singh, Editorial Assistant summated the data.
