Anti-defection law not a weapon for a leader who has lost the numbers, contest respondents in Shiv Sena rift case

Terming the Nabam Rebia judgment 'academic', the respondents Eknath Shinde faction opposed the reference of it to a larger bench. They argued that even if all the disqualification petitions against legislators are to be heard, the election of the current Chief Minister Eknath S. Shinde cannot be vitiated.

—-

ON February 15, the Supreme Court Constitution bench of Chief Justice of India (CJI) Dr. D.Y. Chandrachud and Justices Hima Kohli, M.R. Shah, Krishna Murari and P.S. Narasimha continued hearing a batch of petitions concerning constitutional questions for interpretation of the Tenth Schedule of the Constitution including whether the court's judgment in Nabam Rebia & Bamang Felix versus Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) disables the Speaker from presiding over anti-defection proceedings under the Tenth Schedule when a motion of removal is pending against them.

During the proceedings in the case, Subhash Desai versus Principal Secretary, Governor of Maharashtra & Ors., senior advocate Harish Salve, appearing for the respondents, opposed the reference of Nabam Rebia to a larger bench. Salve told the bench that Nabam Rebia would have applied had there been a trust vote, and it may have raised some questions of law in that case. However, former Chief Minister Uddhav B. Thackeray did not face a trust vote.

Salve claimed that the discussion around Nabam Rebia has become academic because of the communication of the Governor on the trust vote. However, the CJI pointed out that the judgment is not academic as it is a consequence of the communication of the Governor that led to the resignation of the former Chief Minister. Without the disqualification petitions being heard, he did not have the numbers to face the trust vote, the CJI pointed out.

Before his resignation, on June 25, 2022, 16 disqualification petitions, including that of Shinde, were issued by Deputy Speaker Narhari Sitaram Zirwa and two days were given to respond to these notices. However, Shinde challenged the notices before the Supreme Court on the grounds that a no-confidence motion was moved against the Deputy Speaker and that only two days were given to respond to the notices.

On June 27, 2022, a vacation bench of the Supreme Court comprising Justices Surya Kant and J.B. Pardiwala gave 12 days to the 16 legislators, led by Shinde, to respond to the disqualification petitions. The next day, the Shinde camp requested Governor Bhagat Singh Koshyari to direct a floor test in the Assembly. This was challenged by the Thackeray faction in the Supreme Court. On June 29, 2022, the Supreme Court refused to interfere and put a stay on the floor test. Eventually, Thackeray resigned within hours on that day.

Also read: Speed of time: Constitutional questions surrounding the Maharashtra political crisis

It should be noted that one of the writ petitions challenges the communication of the Governor. The other petition challenges the appointment of Bharatshet Gogawale as the Chief Whip of the Shinde faction.

Salve informed the court that the petitioners rely on Nabam Rebia in some of their petitions, while they challenge the reasoning of the judgment. The CJI replied: "… Nabam Rebia becomes right or wrong based on which side and which political situation you are in."

Further, senior advocate Neeraj Kishan Kaul, also for the respondents, argued on similar lines as Salve and opposed Nebam Rebia's reference to a seven-judge Constitution bench of the court.

Kaul told the court that the reasoning of Nebam Rebia that the Speaker must first prove their majority and then decide on disqualifications petition is based on both ethical and constitutional reasoning.

'All the then members of the Assembly' means that the composition of the House must not be altered

Kaul told the bench that the interpretation of the Supreme Court in Nebam Rebia on "all the then members of the Assembly" appearing in Clause (c) of Article 179 (vacation and resignation of, and removal from, the offices of Speaker and Deputy Speaker) of the Constitution, is correct.

The interpretation states that the Speaker cannot disqualify legislators, whilst their own removal is pending, as this provision defines who would participate in this removal. By doing otherwise, the Speaker is in a position to influence their own removal.

Kaul said that the Constituent Assembly debates show that the Assembly wanted to interpret this in a way to consider the members in totality. Sibal, in yesterday's hearing, had challenged the interpretation of the court on the use of the terminology "all the then members of the Assembly".

In the Constituent Assembly debates, it was suggested that the term "all the then members of the Assembly" should be substituted with "the members of the Assembly present and voting". However, the amendment was rejected.

The Supreme Court in Nabam Rebia in this context had observed: "…We are satisfied, that the words 'passed by a majority of all the then members of the Assembly', would prohibit the Speaker from going ahead with the disqualification proceedings under the Tenth Schedule, as the same would negate the effect of the words 'all the then members', after the disqualification of one or more [legislators] from the House."

It further observed: "The words 'all the then members', demonstrate an expression of definiteness. Any change in the strength and composition of the Assembly, by disqualifying sitting [legislators], for the period during which the notice of resolution for the removal of the Speaker (or the Deputy Speaker) is pending, would conflict with the express mandate of Article 179(c), requiring all 'the then members' to determine the right of the Speaker to continue."

There are serious consequences of Nabam Rebia for both sides, warns Supreme Court

At this juncture, the CJI pointed out the apprehension about the consequences of Nabam Rebia for both sides.

Stating that it is a tough constitutional question to answer as the consequences of both positions have serious ramifications on the polity, the CJI remarked: "…[I]f Nabam Rebia's position is taken … the consequence of that is what we have seen in Maharashtra is to allow the free flow of human capital from one political party to another … on the other hand … notwithstanding the fact that the Speaker's continuance is placed under cloud by the issuance of a notice, he can still decide the disqualification notices, the consequence of that then is essentially that where the leader of a political party has lost his/her flock, he can still hold them down to his group though a matter of polity, he has lost his flock … both ends have serious consequences."

How Article 181 impacts the role of the Speaker under the Tenth Schedule 

In the previous day's proceedings, the court had focused on the concurring judgments of Justices Deepak Misra and Jagdish Singh Khehar in Nabam Rebia, wherein the two had stated that the moment notice for the removal is issued, the Speaker's function as a Tribunal is disabled.

On similar lines, Kaul argued that Justice Misra's judgment indicates that the Speaker is capable of impacting their own removal, especially when under Article 181 of the Constitution, they have a casting vote.

Article 181 prescribes that the Speaker or the Deputy Speaker must not preside while a resolution for their removal from the office is under consideration unless there is equality of votes. Sibal had argued that there is no hiatus in the legislative functioning of the Speaker even while their removal proceedings are under consideration. It is only their role as a Tribunal that is restricted.

However, the CJI clarified that there is a limited disability attached to the role of the Speaker under Article 181, which is a constitutional incorporation of a rule against bias that they should not act in their own cause. But it also incorporates the principle of natural justice that the speaker can contest their removal and vote when there is no equality of votes.

In this context, the CJI stated that Nabam Rebia interpreted that since the Speaker can cast their vote, they can also impact the decisions under the Tenth Schedule. Thus, the powers under Tenth Schedule should not be exercised when a resolution of the Speaker's removal is considered.

Justice Narasimha said that it is crucial to point out at what time this obligation applies — the moment when the notice is issued, or when the leave is granted and within the period of seven days a resolution for Speaker's removal is to be passed.

The bench suggested Kaul make submissions on the interpretation of the term 'under consideration' in Article 181(1). Article 181(1) reads, "At any sitting of the Legislative Assembly, while any resolution for the removal of the Speaker from his office is under consideration, the Speaker, or while any resolution for the removal of the Deputy Speaker, from his office is under consideration, the Deputy Speaker, shall not, though he is present, preside, and the provisions of Clause (2) of Article 180 shall apply in relation to every such sitting as they apply in relation to a sitting from which the Speaker or, as the case may be, the Deputy Speaker, is absent."

Kaul answered that the difference between Article 181 and the Tenth Schedule is that in the former, the Speaker is not the only person whereas, while deciding on the disqualification petitions, they are the sole arbiter.

Kaul: Particular legislator missing out on voting may impact the whole constituency 

Kaul submitted that if the court wants to avoid constitutional violence and bias, the date on which the Speaker's function under the Tenth Schedule is disabled has to be the date on which the notice is issued. Referring to Justice Misra's judgment in Nabam Rebia, wherein he said that the Speaker may change the entire composition within the 14 days period, Kaul argued that there may be a judicial review in the decision on disqualification but once a legislator misses out on voting, it cannot be undone.

He concluded by saying that the entire bedrock of democracy would be shaken in such cases because the legislator would lose their membership to the house and a whole constituency could go unrepresented.

Solicitor General of India Tushar Mehta also argued that the Speaker should not be allowed to alter the composition of the house which has the power to vote them out of office.

What happened in the previous hearing? 

On February 14, senior advocate Kapil Sibal, for the petitioners, highlighted why Nabam Rebia needs to be revisited as it attaches a disability to the functioning of the Speaker as a tribunal. The Speaker cannot decide on the disqualification petitions under the Tenth Schedule the moment a notice for their removal is issued. While the Speaker continues to perform all their legislative functions as usual until a resolution for their removal is passed.

The court also deliberated on the consequences of allowing the Speaker to act on disqualification petitions when leave for their removal has been granted but a resolution has not been passed.

A Speaker can be removed when a notice with a 14 days period is issued by a legislator under Article 179(c) of the Constitution. After the expiry of the period, the notice should be read by the Speaker and a majority of ten per cent of the total membership of the House must vote in favour. Once it is voted in favour, a leave is granted and within seven days, a resolution for the Speaker's resolution has to be passed. Rule 11 of the Maharashtra Legislative Assembly Rules elaborates on the procedure for the removal of the Speaker.

The court will continue to hear the matter on February 16.