Vacation bench has asked the Deputy Speaker to clarify whether he received the notice for his removal before he received the plea for disqualifying the rebels.
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IN a relief to the rebel Shiv Sena Members of Legislative Assembly ('MLAs') of the Maharashtra Vidhan Sabha led by four-term MLA Eknath Shinde, the Supreme Court earlier today extended the deadline from 5 p.m. today to 5 p.m. on July 12 for them to respond to the notice of disqualification issued by the Deputy Speaker of the Vidhan Sabha. The court has also issued notices to the Deputy Speaker and others, calling for their responses to a petition filed by Shinde challenging the jurisdiction of the deputy speaker to initiate disqualification proceedings against 16 rebel MLAs of the Shiv Sena under the Tenth Schedule of the Constitution.
A vacation bench of Justices Surya Kant and J.B. Pardiwala passed the order to this effect as it was of the view that the matter required consideration which necessitated an interim arrangement so that the matter may not become infructuous, even as the bench directed that the hearing of the case will resume on July 11.
The bench also recorded the submission made by the counsel for Maharashtra that the state government is taking all the steps to ensure law and order is maintained, and also to provide adequate security to all the 39 rebel MLAs and their families.
Senior advocate Neeraj Kaul, representing Eknath Shinde and others, argued that the Deputy Speaker could not proceed with the disqualification proceedings when the motion seeking his own removal is pending. Kaul cited the decision of a Constitution bench of the Supreme Court in Nabam Rebia, & Bamang Felix versus Dy. Speaker & Ors. (2016), in which it was held that it would be constitutionally impermissible for a Speaker to adjudicate upon disqualification petition under the Tenth Schedule, while a notice of resolution for his own removal from the Office of Speaker is pending.
Kaul also questioned the tearing hurry shown by the deputy speaker in going ahead with disqualification proceedings while granting only two days to respond to the notice.
In response to the bench's query as to why the petitioners did not approach the high court, Kaul responded by saying the use of Article 226 is a matter of discretion, but there is no bar on the Supreme Court to entertaining plea.
"A minority of the legislative party is taking a decision. Our houses are being burnt," Kaul said.
The bench sought to know from senior advocate Dr. Rajeev Dhavan, who was appearing for the deputy speaker, as to whether he received a notice seeking his removal. Answering in affirmative, Dr. Dhavan said that he did receive the notice but he did not take it on record as he has yet to ascertain the genuineness of the signatures annexed to the letter as the same was sent from an unverified mail. The bench then asked him to file a reply as to when and how he received a letter seeking his removal, how did he proceed with it, and whether any efforts were made to ascertain the genuineness of the signatures.
Senior Advocate Dr. Abhishek Manu Singhvi, for Shiv Sena, argued that courts cannot intervene at this stage as only notices have been issued on the disqualification pleas. He cited the decision of a Constitution bench of the Supreme Court in Kihoto Hollohan versus Zachillhu & Ors. (1992), to buttress his submissions. He submitted that the court could interfere only if there is an interim disqualification because it amounts to disqualification per se.
"There is not one single case in India, barring Rajasthan case, where milords have interdicted the speaker. The Kihoto Hollohan judgment is clear on that. The judgment states clearly that the court will not intervene till the Speaker has decided," Dr. Singhvi said.
Senior advocate Devadatt Kamat, who was appearing for Ajay Choudhary, the leader of Shiv Sena Legislature Party ('SSLP'), said that he was challenging the maintainability of the petitions.
"Whether the disqualification has to be before High Court or Supreme Court, the Supreme Court has conclusively decided…", he contended.
On the interim relief, Kamat vehemently contended that no court has ever granted a stay of disqualification process. He added that any interim stay would be akin to interdicting the proceedings of the House since disqualification proceedings are deemed to be proceedings of the Assembly. The bench, however, responded by saying these are good debatable issues and it will consider them later, but today it has to consider that the petition does not become infructuous.
Shinde, in his petition, has claimed that the current government in the state of Maharashtra, led by the Maha Vikas Aghadi ('MVA') alliance, has lost the majority in the house as 38 of the members of the SSLP have withdrawn their support, thus bringing it below the majority figure in the house.
"However, the MVA government continues to misuse the office of the Deputy Speaker to ensure that they remain in power by whatever means necessary", Shinde asserts. He has also challenged the decision of the deputy speaker recognizing Ajay Choudhury as the leader of the SSLP despite the said request being admittedly made by a minority faction of the SSLP.