New Delhi: The Supreme Court Friday said that whether its 2016 Nabam Rebia judgment needs relook by a larger bench or not will have to be examined together with the contentions of Shiv Sena factions on the Speaker’s power to adjudicate on MLA disqualifications.
The question of reconsidering the 2016 judgment came up before the Supreme Court on a batch of petitions arising out of the political fallout in Maharashtra last year following differences in the rival Sena groups owing allegiance to chief minister Eknath Shinde and his predecessor, Uddhav Thackeray.
Shinde’s rebellion with the majority of Shiv Sena MLAs had toppled the Thackeray-led state government, and caused a vertical split in the party.
While deciding the Nabam Rebia case in 2016, a five-judge SC bench held that the Speaker cannot decide disqualification proceedings filed under the anti-defection law against an Member of Legislative Assembly (MLA), when a resolution seeking his/her own removal from the post is pending.
The judgment was cited by the rebel Shinde group, when they argued before the apex court that Maharashtra Assembly Deputy Speaker Narhari Zirwal could not proceed under the Constitution’s Tenth Schedule (disqualification on the grounds of defection) against dissident Sena MLAs as a notice seeking Zirwal’s removal was pending. Led by Shinde, 14 MLAs had served a no-confidence notice against Zirwal.
In August 2022, a three-judge Supreme Court bench referred 11 matters — including one on the correctness of the Nabam Rebia verdict — in the Sena case to a five-judge bench. During arguments before the five-judge bench since then, the Thackeray faction sought a relook at the Nabam Rebia judgment by a seven-judge bench, while the Shinde-led faction opposed the reference to a larger bench.
During a hearing earlier this week, the Thackeray camp contended that keeping the Nabam Rebia judgment in mind, MLAs who want to defect can stall disqualification proceedings by seeking the Speaker’s removal through a notice, and that the judgment was being misused by defecting MLAs.
However, on Friday, a five-judge constitution bench comprising Chief Justice of India D.Y, Chandrachud, and Justices M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha said: “Issue of reference cannot be decided in isolation without facts of the case. Issue of reference will be decided only with merits of the case.”
What is the backstory of the Nabam Rebia judgment and what did the Supreme Court rule in the judgment?
ThePrint explains.
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The Arunachal Pradesh constitutional crisis
The judgment in the Nabam Rebia case arose out of a constitutional crisis that arose in Arunachal Pradesh in November 2015, when 21 Congress MLAs rebelled against then chief minister Nabam Tuki.
In 2014, the Congress had won the majority in the assembly with 42 members in a House strength of 60. The BJP won 11 seats, five by the People’s Party of Arunachal and two went to Independents.
However, the rebel MLAs wrote to Governor J.P. Rajkhowa on 11 October, 2015, claiming that Tuki did not enjoy the majority in the assembly anymore.
On 19 November, 2015, a notice of resolution for the removal of the Speaker, Nabam Rebia, was moved by the 13 MLAs – 11 belonging to the BJP, and two Independents.
A copy of this resolution was also forwarded to the Governor, requesting him to prepone the assembly session and expedite the Speaker’s removal.
On 9 December, 2015, the Governor brought the assembly session forward from 14 January to 16 December – taking the decision independently, without the aid and advice of the Council of Ministers and the CM. He also fixed the resolution for removal of the Speaker as the first item of the House agenda, at the first sitting of the assembly session.
On 15 December, 2015, Rebia preemptively disqualified 14 rebel Congress MLAs on the ground of defection, before the assembly could meet. On 16 December, Deputy Speaker Tenzing Norbu Thongdok conducted the assembly session outside the official premises, and among other things, the resolution to remove Speaker Rebia was adopted.
A day later, the Tuki government was declared to have lost confidence of the assembly, and Kalikho Pul – another Congress MLA who had led the revolt against Tuki – was chosen as the new leader of the assembly.
Rebia then challenged his dismissal as well as the Governor’s orders in the Gauhati High Court, which dismissed his petition in January 2016 and upheld the Governor’s and assembly’s decisions.
Rebia then appealed to the Supreme Court.
SC reinstated Tuki government
Article 163 of the Constitution requires a state government to act on the “aid and advice” of the Council of Ministers, headed by the Chief Minister. However, it adds that the Governor would not need the Council of Ministers’ aid and advice, if the Constitution requires him to carry out any function at his discretion.
Article 179 of the Constitution says a Speaker can be removed from his office by a resolution of the assembly passed by a “majority of all the then members of the assembly”.
In a landmark judgment, a five-judge bench of the Supreme Court reinstated chief minister Nabam Tuki, invalidating the actions of the Governor. It directed the immediate imposition of status quo ante as on 15 December, 2015, and showed the door to the BJP-propped government of Kalikho Pul.
The main questions before the bench comprising Justices J.S. Khehar, Dipak Misra, M.B. Lokur, P.C. Ghose and N.V. Ramana pertained to the discretionary powers of the Governor.
Among other things, the apex court held that “it would be constitutionally impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule, while a notice of resolution for his own removal from the office of Speaker, is pending”.
It explained that any change in strength and composition of the assembly, by disqualifying sitting MLAs while a notice for the Speaker’s removal was pending, would conflict with the mandate under Article 179(c), requiring all “the then (assembly) members” to decide on the removal notice.
The bench also pointed out that if an MLA was disqualified, he would have no right to participate in the motion moved against the Speaker under Article 179(c), and opined that “it could seriously prejudice MLAs facing disqualification, if petitions for their disqualification are taken up and dealt with first”.
What are the arguments before SC now?
The current case before the Supreme Court arose from the political crises that led to a change in power in Maharashtra in June last year, after the Shinde faction joined hands with the BJP to topple Thackeray’s government. With the support of the BJP, Shinde replaced Thackeray as the CM.
During the political drama, 14 MLAs led by Shinde served a no-confidence notice against Zirwal on 24 June. A day later, the Shinde rebel faction was served with a disqualification notice for defection by Zirwal, for acting against the Shiv Sena whip while voting during the Member of Legislative Council elections earlier that month.
However, Zirwal’s notice was questioned by Shinde and others, who asserted that the Speaker could not have proceeded on the disqualification petitions, as a removal notice was pending against him.
Shinde and 15 other legislators against whom the disqualification notice had been issued were supposed to submit their written responses to the Deputy Speaker by 5.30 pm on June 27.
But on June 27, the SC granted interim relief to the Shinde group by extending till 12 July the time to file their responses to the notice.
Two days later, the Supreme Court allowed the floor test called on 30 June by then Governor Bhagat Singh Koshyari to ascertain the Thackeray-led Maha Vikas Aghadi government’s claim of a majority. It refused to give interim relief on a petition filed by the Thackeray group against the summoning of the assembly by the Governor.
The Thackeray faction also filed a fresh petition in the SC, challenging the Speaker’s decision to recognise the new Shiv Sena leader and chief whip in the Lok Sabha.
In August last year, the SC referred all the petitions pertaining to the Sena crisis to a larger bench of five judges, noting that the matter “raises important issues” involving the contours of disqualification proceedings and the powers of the Governor and the Speaker.
During the hearing, the Thackeray faction then sought a re-examination of the principles laid down in the Nabam Rebia judgment, arguing that it leaves the anti-defection law redundant.
They also contended that the Constitution does not envisage any “fetter” on the functional autonomy of the Speaker from deciding disqualification petitions, even at a time when a notice for his removal is pending.
The Shinde group argued against the request to review the judgment, submitting that if such a restraint is not placed on the Speaker, he could change the composition in the assembly by disqualifying members and allow a leader without a majority in the House to continue as the CM.
(Edited by Nida Fatima Siddiqui)
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