New Delhi: A key takeaway from the Supreme Court’s (SC) Thursday verdict on Maharashtra’s political imbroglio is the referring of the matter of whether a speaker is disabled from initiating disqualification proceedings when a notice to move a resolution for their removal has been issued, to a larger bench.
The court was hearing a batch of petitions arising out of the intra-party rift in the Shiv Sena last year, leading to a political upheaval in Maharashtra, which finally resulted in change of government in the state.
A five-judge bench led by Chief Justice of India D.Y. Chandrachud agreed with the contention made by the Uddhav Thackeray faction of the party that its 2016 judgment — Nabam Rebia — delivered in connection with President’s Rule imposed in Arunachal Pradesh needed to be reconsidered.
In the Nabam Rebia verdict, a five-judge constitution bench had held that it is impermissible for a speaker to adjudicate upon disqualification petitions under the Tenth Schedule of the 52nd amendment to the Constitution (anti-defection law) after a notice of intention to move a resolution for the speaker’s removal from office is issued.
The faction of rebel Shiv Sena MLAs, led by now Chief Minister Eknath Shinde had questioned in court the speaker’s decision to issue disqualification notices to its members on the ground that he was barred from doing so in view of the 2016 judgment.
The Thackeray group contended that the top court on 22 June, 2022, relied on the Nabam Rebia judgment when it gave more time to the members of the Shinde faction to respond to the speaker’s notice on disqualification petitions against them.
It was after this order that the then Maharashtra Governor (Bhagat Singh Koshyari) asked then CM Thackeray to face a floor test. Thackeray had subsequently resigned, paving the way for a new government in the state.
Also read: Win for Shinde, win for Uddhav? What SC’s Maharashtra govt judgment means for rival Senas
‘All the then members of assembly’
The Nabam Rebia judgment unanimously held that the Governor’s power to summon, dissolve and advance an assembly session falls within the ambit of judicial review.
The five-judge bench that delivered the verdict also concluded that an assembly speaker cannot act upon disqualification petitions filed against defected members of a party in case a motion seeking his removal is pending under Article 179 of the Constitution.
Article 179 prescribes the procedure to remove a speaker. Under Article 179(c), a speaker may be removed from office by a resolution of the Assembly, passed by the “majority of all the then members of the Assembly”.
The Nabam Rebia judgment had inferred the phrase “all the then members of the Assembly” to say that there should not be any change in the composition of the Assembly when the notice of intention to move a resolution for the removal of the Speaker was pending.
It was held that if the speaker decides “the disqualification petition before surviving the vote, it would prejudice the MLAs against whom disqualification petition is pending”. Disqualification would take away their right to participate in the motion moved against the Speaker and the same would not be in conformity with the phrase “all the then members of the Assembly” under Article 179 (c).
This eventuality, it was stated, can be avoided if the disqualification petitions are taken up after the motion against the Speaker is put to vote.
The Nabam Rebia judgment also referred to the Constituent Assembly debates to interpret the phrase “all the then members”. The court noted that although a notice of amendment was moved by a Constituent Assembly member proposing that the phrase be replaced with the term “all the members of the Assembly present and voting”, the same was rejected.
However, the SC’s Thursday judgment stated that the Nabam Rebia verdict did not consider other discussions held in the Constituent Assembly to interpret the phrase “all the then members” in connection with other provisions of the Constitution.
“The court appears not to have noticed the entirety of the discussion in the Constituent Assembly regarding the phrase ‘all the then members’ while using the Constituent Assembly debates as an internal aid of interpretation,” Thursday’s judgment read.
Further, the Nabam Rebia verdict did not consider whether temporary disablement of the Speaker is prone to misuse by MLAs who anticipate disqualification petitions against them, or by MLAs against whom disqualification petitions have already been instituted, the court noted.
The SC further pointed out that a “constitutional hiatus” in the operation of the Tenth Schedule ensues because of the temporary disablement of the speaker. The same too was not dealt with in the Nabam Rebia case, it said.
Thursday’s verdict also speaks of Article 181 of the Constitution, which states that the speaker shall not preside over a sitting of the assembly when a resolution for their removal is under consideration. The Naman Rebia judgment, according to the court, did not consider whether the Constitution envisages any other restriction on the Speaker’s function, beyond what is imposed by Article 181.
Interim measure for Speaker
Pending the reference of the 2016 judgment to a larger bench, Thursday’s order suggested an interim measure for the Speaker to follow in case a notice to move an intention to remove them is issued, pending disqualification petitions. It said the speaker can determine the complaints under the Tenth Schedule and rule upon them.
The speaker is also entitled to rule on applications which require them to refrain from adjudicating proceedings under the Tenth Schedule on the ground of initiation of a motion for their removal. They can examine if the application is bona fide or intended to evade adjudication of disqualification proceedings, the SC said Thursday.
If the speaker believes the motion to remove them is well founded, they may adjourn the proceedings under the Tenth Schedule till the decision for their removal is concluded. But if the decision is otherwise, they are entitled to reject such an application. All these decisions would be subject to judicial review, the court order read.
The bench further said that the Nabam Rebia verdict was in conflict with a 1992 constitution bench judgment in the Kihoto Hollohan case.
While the Nabam Rebia verdict doubted the ability of the speaker to remain neutral while deciding disqualification petitions after a resolution to remove them is moved, the Kihoto Hollohan order of the SC had stated there was no reason to doubt the independence and impartiality of the Speaker when adjudicating such proceedings under the Tenth Schedule.
In the 1992 judgment in Kihoto Hollohan, the top court had upheld a sweeping discretion available with the Speaker in deciding MLA disqualification cases.
The judgement had settled the constitutional challenge to the anti-defection law, as it decided the main question that whether the powerful role of the Speaker under the Tenth Schedule violated the doctrine of basic structure (which states that the basic structure of the Constitution cannot be changed).
(Edited by Nida Fatima Siddiqui)