A decision by the Supreme Court to stay disqualification proceedings against16 then rebel Shiv Sena lawmakers and extending the time frame for them to respond to notices led to the toppling of the Maha Vikas Aghadi (MVA) government, the Shiv Sena faction led by Uddhav Thackeray argued before a five-judge Constitution bench on Tuesday.
The court was hearing a batch of appeals filed by the rival camps of Shiv Sena — one led by Thackeray and another by current chief minister Eknath Shinde. The latter has challenged disqualification petitions by the then deputy speaker Narahari Zirwal against 16 MLAs, and the former has questioned the Maharashtra governor’s decision to conduct a floor test on June 30 and all subsequent actions taken by the government formed by Shinde.
Senior advocate Kapil Sibal, appearing for the Thackeray camp, told the court that the SC’s June 27 order extending time till July 12 for the rebel MLAs led by Shinde to respond to their disqualification pleas acted as the trigger for the elected government to fall a day ahead of the proposed trust vote on June 30.
Thackeray resigned as chief minister on June 29 after Shinde and 40 other MLAs walked out of the party, forming a new government with support from the Bharatiya Janata Party (BJP).
“The order of this court of June 27 automatically stayed the disqualification proceedings by extending the time till July 12 for filing replies till July 12,” Sibal said. “This judgment of the court actually led to toppling of the elected government. Otherwise, all this would not have happened.”
The June 27 order came on a petition filed by Shinde that extensively relied upon a 2016 Constitution bench decision in the Nabam Rebia case, he WHO added. The Nabam Rebia case held that a speaker cannot decide on disqualification pleas when a proceeding for his removal was pending in the House. The Shinde camp had challenged the disqualification proceedings initiated by then deputy speaker Narahari Zirwal, claiming that it violated the 2016 decision as a notice for Zirwal’s removal was pending since June 22.
“This (Nabam Rebia judgment) has created havoc. It has become a device to ensure disqualification petitions are not entertained by the speaker,” Sibal said. “As the speaker cannot act, politics takes over and then as history shows, speaker after speaker, they never act as unbiased umpires in a game of politics and go with the government that appoints them.”
The bench headed by Chief Justice of India Dhananjaya Y Chandrachud told Sibal that the judges who decided the Rebia judgment went by the doctrine of constitutional trust and impartiality of the speaker, who can impact his own removal, if allowed to continue, by deciding on the disqualification pleas of members.
“By giving this power to the speaker, are we not allowing him to be judge of his own cause?” asked the bench, also comprising justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha. “It may tilt the balance.”
Senior advocate Abhishek Manu Singhvi, who supplemented Sibal’s submissions for the Thackeray camp, said: “While deciding the balance, the court must consider irreversibility versus reversibility. The Rebia judgment has rendered the 10th Schedule a nullity. What is the harm being caused if MLAs are disqualified. They have judicial review by which disqualification can be reversed. But if government falls, a new government and a new speaker comes in place. The court will lean in favour of a lesser harm.”
Sibal further submitted that if the Rebia judgement is not reviewed, there can be a situation in future when a notice can be issued by any MLA against a speaker and deputy speaker. “This has far-reaching consequences on how our democracy is to function. Suppose there is a notice of removal against a speaker and deputy speaker. There can never be a hiatus in a constitutional authority,” he argued. “This is the basic flaw in the 2016 judgment.”
It was also pointed out that the notice for removal of the speaker issued on June 22 was not acted upon despite the House meeting thrice to hold sessions. “These facts clearly point out that the dictum in Nabam Rabia has been used as a device by defectors to avoid the consequences of disqualification under the 10th Schedule,” said senior advocate Devadutt Kamat, also appearing for Thackeray camp.
Article 179 of the Constitution lays down that a speaker cannot be removed unless a clear 14-day notice is given. The rules governing assembly proceedings further require the motion of removal to be endorsed by 10% of members of the House. In the Maharashtra case, Sibal said the House was not in session and no resolution against the speaker could be moved. Till then, he was stopped from acting on the disqualification pleas owing to Rebia decision.
The court wished to know that in such a scenario, who would decide on the disqualification pleas. Sibal said the courts should take a call. In his submissions, he even doubted the correctness of another 1992 Constitution bench decision in the Kihoto Hollohan case, which gave sweeping powers to a speaker to decide on disqualification pleas.
“Time has come that such wide powers cannot be given to a speaker,” Sibal said. The bench said disqualification being a procedure within the House, courts will be slow to interfere. “You are throwing the baby with the bathwater. There will be no disqualification as who will be there to decide. You have to draw a line or else it will become unending,” the bench observed.
This was the first day of arguments in the matter before the Constitution bench; the Shinde camp led by senior advocate Harish Salve will open arguments on Wednesday.