Rival Shiv Sena factions in Maharashtra staking claim to power have posed a tough constitutional question which has serious consequences for the polity, the Supreme Court said on Wednesday as it weighed the options of referring its earlier 2016 decision (saying a speaker could not adjudicate on the disqualification of a member of the legislative assembly when there is a notice seeking his own removal) to a larger bench of seven judges.
A bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud said: “If the 2016 decision in Nabam Rebia (decided by a five-judge bench) is accepted, the consequence is, as we have seen in Maharashtra, to allow free flow of human capital from one political party to the other. On the other hand, if the Speaker can still decide on the disqualification under the 10th Schedule (anti-defection law), consequence of that is that, essentially, where a leader has lost his or her flock, he can still hold them down to his group.” That ruling was in a case involving the then Speaker of the Arunchal Pradesh assembly.
The bench, also comprising justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha said, “It is a tough constitutional question to answer as the consequences of both positions have a very serious ramification for the polity.”
The Court was considering the plea by the Uddhav Thackeray faction led by its chief whip Sunil Prabhu seeking reference of the 2016 decision to a larger bench. Senior advocates Kapil Sibal and Abhishek Manu Singhvi appearing for the Thackeray faction claimed that the 2016 decision influenced the top court on June 27 to grant extension of time till July 12 for the 16 rebel Shiv Sena MLAs facing notice of disqualification to file their replies before the then Deputy Speaker Narahari Zirwal who was officiating as Speaker of the Maharashtra assembly.
The rival faction led by the present Chief Minister Eknath Shinde submitted that such a reference was not necessary and purely “academic” as the 16 MLAs never got to vote as Thackeray resigned a day before the proposed floor test that was ordered on June 30 by the then Governor Bhagat Singh Koshyari.
Senior advocate Harish Salve, appearing for Shinde said, “Anti-defection law is not a weapon for a leader who has lost faith of his members to hang on to power. There are layers of political morality in all this. It is best for Courts to stay away from it.” He stated that Rebia decision did not apply in the present case as the top court’s June 27 order did not restrain the Speaker/Deputy Speaker (from discharging duties) but only extended time (for the legislators to reply). He further argued that the petition filed by Thackeray faction would have survived only if the 16 MLAs facing disqualification had voted in the floor test.
The bench remarked, “They (Thackeray faction) could have faced the House but they obviated it by resigning. We will have to decide in that light.”
After a rebellion by Shinde and a bunch of legislators against then CM Uddhav Thackeray, the Uddhav faction, on June 25, 2022 were served a disqualification notice by the Deputy Speaker. A day later, Shinde and the others approached the top court. After the court’s June 27 ruling, the governor ordered a floor test. Apart from the Supreme Court, the two factions are also fighting it out in the Election Commission for the rights to be the Shiv Sena.
Solicitor General Tushar Mehta, appearing for the Maharashtra Governor told the Court that the 10th Schedule cannot be converted into a “weapon” to stifle bonafide dissent but is meant to prevent unprincipled defections. As a preface to his submissions he called Thackeray as the “leader of the stable” who took the stable away and formed a government with the Congress and Nationalist Congress Party (NCP) against whom the Shiv Sena and BJP in a pre-poll alliance contested elections.
The bench told Mehta, “How can the Governor be heard to say all this. The Governor’s role is limited to asking them for trust vote. The Governor should not enter the political field.”
Mehta clarified that the submissions were in his individual capacity and not on behalf of the Governor. Sibal objected saying that Mehta cannot have status independent of that of Governor. “In my individual capacity, going by my conscience, even I can say that the party in power has power to buy off people,” Sibal said.
Mehta told the Court that his arguments were aimed to defend the validity of 2016 decision as the flip side to the judgment is that the Speaker can choose the electoral college for considering a no confidence against him and can disqualify elected members depriving the electorate of their voice in the House.
The Court told both sides that the Nabam Rebia judgment may require some “tightening” as to when a Speaker will not be allowed to take a call on disqualification pleas. “The majority in Rebia case have specifically taken a view that when a notice for removal of Speaker is moved by any member, he cannot proceed. If we take somewhat different view, can we do it sitting in combination of five or we need to refer it to seven judges? ”
“This has grave potential of misuse. You require just one person to move the notice (of removal against Speaker or Deputy Speaker). This can cause grave danger as there is no threshold of minimum numbers,” the bench added.
Senior advocate Neeraj Kishan Kaul appearing for Shinde faction submitted that the Rebia judgment is based on ethical and constitutional reasoning as the judges there noted the possibility of Speaker affecting the outcome of his own removal.
The bench said that the Constitution prescribes only one disability against Speaker/Deputy Speaker under Article 181 which provides for his removal that he cannot preside when the motion of his removal is being considered, though he may participate in it.
As the arguments remained inconclusive, the Court adjourned the hearing to Thursday.