Supreme Court issues notice to Maharashtra speaker over delay in deciding disqualification petitions

The Supreme Court's notice to the speaker of the Maharashtra legislative assembly Rahul Narvekar is over the delay in deciding disqualification petitions against the current chief minister of the state and several other legislators which have been pending before him for more than a year.

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TODAY, the Supreme Court issued notice to Maharashtra legislative assembly speaker Rahul Narvekar over the delay in deciding the disqualification petitions against the current Chief Minister Eknath S. Shinde and several other members of the legislative assembly (MLAs).

A Bench headed by the Chief Justice of India Dr D.Y. Chandrachud and comprising Justice P.S. Narasimha and Manoj Mishra issued notice on a petition filed by the MLA and former chief whip in the legislative assembly of the Uddhav B. Thackeray's Shiv Sena, Sunil Prabhu, seeking directions for the expeditious disposal of the disqualification petitions that have been pending before the speaker for more than a year.

The petition was filed on July 4, two months after the Supreme Court in Subhash Desai versus Principal Secretary, Governor of Maharashtra and Ors remanded the disqualification petitions pending against the current Shinde and his camp to the speaker. It held that the speaker is the "appropriate constitutional authority" to decide on the petitions.

In Subhash Desai, a batch of petitions was filed in the backdrop of last year's Maharashtra political crisis.

In June 2022, Shinde along with many other legislators from the undivided Shiv Sena rebelled against the then Chief Minister Thackeray in the Maharashtra Vidhan Sabha. This eventually led to the end of the Maha Vikas Aghadi government, comprising the Shiv Sena, the Nationalist Congress Party and the Indian National Congress.

While the rebel MLAs declared Shinde as the leader of Shiv Sena, Thackeray treated these "anti-party activities" as "voluntarily giving up membership of the political party".

Subsequently, Thackeray issued 16 disqualification notices including against Shinde through the deputy speaker Narhari Zirwal (the seat of the speaker was incumbent at that time).

When Zirwal issued a notice of disqualification, giving the rebel MLAs two days time to file a reply, the Shinde camp moved a no-confidence motion for the removal of Zirwal. A petition was also filed by the Shinde camp challenging the disqualification notice before the Supreme Court on the grounds that since a no-confidence motion had been moved against the speaker, he did not have the authority to decide on the disqualification petitions.

On June 27, 2022, a vacation Bench of the Supreme Court comprising Justices Surya Kant and J.B. Pardiwala stayed the disqualification proceedings and gave 12 days to the Shinde camp to respond to these petitions. More than a year has passed since and still no replies have been filed.

The political upheaval took a dramatic turn when Thackeray resigned instead of facing a floor test on June 29. Subsequently, governor Bharat Singh Koshyari invited Shinde to form a government. On June 30, Shinde was sworn in as the chief minister. Later, Narvekar was appointed the speaker.

The Subhash Desai batch of petitions was filed by the general secretary of the Thackeray-led Shiv Sena, Subhash Desai, challenging the validity of the election of Narvekar and raising other constitutional issues as well.

One of the contentions in the batch of petitions was that either the court decide on the disqualification petitions or they should be remanded to the deputy speaker because a new speaker had been appointed by the Shinde faction. The petitioner stated that since the speaker cancelled the recognition of Prabhu as the chief whip of the Shiv Sena, he has failed to act independently and impartially.

On May 11 this year, a Supreme Court Bench comprising Chief Justice of India Dr D.Y. Chandrachud and Justices Hima Kohli, M.R. Shah, Krishna Murari and P.S. Narasimha in Subhash Desai observed that the status quo ante in Maharashtra cannot be restored because Thackeray resigned before facing a floor test.

The Bench also upheld the election of Narvekar as the speaker as per the procedure laid down in Maharashtra Assembly Rules, 1960. The court added that the speaker must decide on the disqualification petitions within a reasonable period of time.

About the petition

In Sunil Prabhu versus The Speaker, Maharashtra State Legislative Assembly, Prabhu contends that the speaker has committed gross constitutional injustice by failing to decide on the disqualification petitions within a reasonable period of time.  

The petition comes at a crucial juncture because the speaker has recently issued notices over the pending disqualification petitions to 53 MLAs out of which 39 belongs to the Shinde faction.

In the petition, Prabhu has reiterated that the speaker, under Paragraph 6 of the Tenth Schedule of the Constitution acts like a 'judicial tribunal' and is required to act in a fair and unbiased manner. As per Paragraph 6 of the Tenth Schedule, the speaker has exclusive jurisdiction to decide on disqualification petitions.

In Kihoto Hollohan versus Zachillhu & Ors (1992), a five-judge Bench of the Supreme Court had held that the court cannot interfere with the jurisdiction of the speaker at the interlocutory level. However, the decision of the speaker is subject to judicial review, the judgment had declared.

The Supreme Court's three-judge Bench in Keisham Meghachandra Singh versus The Hon'ble Speaker Manipur Legislative Assembly & Ors (2020) reiterated the reasoning given in Kihoto Hollohan. 

The court added that the speaker, as a tribunal under the Tenth Schedule, is expected to act fairly, independently and impartially while adjudicating disqualification petitions.

The court added that the speaker must decide the disqualification petitions within a reasonable time, which is a period of three months from the date on which the petition is filed as the outer limit within which disqualification petitions are filed before the speaker.

Reiterating these two judgments of the Supreme Court, the present petitions state that one of the constitutional requirements of fairness enjoined upon the speaker is the obligation to decide the question of disqualification in an expeditious matter. However, the speaker's "inaction" in deciding the petitions has led to grave constitutional impropriety in the present case. 

The petition points out that the Thackeray-led Shiv Sena has made a representation thrice before the speaker to decide on the pending disqualification petitions but the speaker has failed to act upon them.

The petition states: "[The] speaker's inaction is allowing members of legislative assembly who are liable to be disqualified to continue in the assembly and to hold responsible positions in the government of Maharashtra including that of the chief minister."

The petition further notes that the continuation of the grave political crisis over the failure of the speaker to act in a fair and unbiased tribunal has violated the Supreme Court's judgment of Rajendra Singh Rana & Ors versus Swami Prasad Maurya & Ors (2007).

In the Rajendra Singh Rana judgment, it was held that the continuance of disqualified MLAs in the assembly even for a day, as well as their holding office as ministers, would be illegal and thus an affront to constitutional values and democratic principles.

"Any unreasonable delay on the part of the speaker in deciding the petitions for disqualification contributes to and perpetuates the constitutional sin of defection committed by the delinquent members," the petition avers.

The petition concludes that the speaker's inaction is in violation of the Supreme Court's directions in Subhash Desai.