The Supreme Court on Tuesday was apprised by the Uddhav Thackeray Shiv Sena faction that it will seek reference of cases related to the Maharashtra political crisis to a seven-judge bench to have a relook of a 2016 judgment on powers of assembly speakers to deal with disqualification pleas.
In 2016, a five-judge constitution bench, while deciding the Nabam Rebia case, had held that the assembly speaker cannot proceed with a plea for disqualification of MLAs if a prior notice seeking removal of the speaker is pending decision in the House.
This decision had come to the rescue of rebel MLAs led by Eknath Shinde, now the chief minister of Maharashtra, in the apex court on the ground of pendency of a notice for removal of assembly deputy speaker Narhari Sitaram Zariwal.
A five-judge constitution bench headed by Chief Justice D Y Chandrachud, while hearing a batch of pleas related to the Maharashtra political crisis triggered by the Shiv Sena’s division, was told by senior advocate Kapil Sibal, appearing for the Thackeray faction, that he will be seeking reference of matters to a seven-judge bench to have a relook of the 2016 judgment in the Nabam Rebia case.
Solicitor General Tushar Mehta, appearing for the Maharashtra governor, said he would also like to submit a note on broader issues including the pre-poll alliance.
Earlier this year, the Thackeray-led Maha Vikas Aghadi (MVA) government in the state that comprised the Shiv Sena, the NCP and the Congress collapsed after Sena MLA Shinde and 39 other legislators rebelled against the party’s leadership. This later led to the division in the Shiv Sena with one faction headed by Thackeray and the other by Shinde. “Kapil Sibal, senior counsel, submits that when the matter is taken up for hearing, he would be arguing for a reference of the correctness of the view of the constitution bench in the Nabam Rebia case… to a seven-judge constitution bench. It has been agreed that Sibal shall circulate a brief note of his submission on the proposed reference to a seven-judge bench that he would seek,” said the bench which also comprised justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha.
“The note shall be circulated at least two weeks in advance to the other respondents (Shinde faction and others). The respondents would be at liberty to circulate a brief note of submissions in response. Both sets of notes shall be compiled by the nodal counsel and be circulated to the bench,” it said. The bench then fixed the pleas on January 10 for issuing directions.
The political crisis in the state had aggravated after the rebellion in the Shiv Sena and on June 29, the apex court had refused to stay the direction of the Maharashtra governor to the 31-month-old MVA government to take a floor test in the assembly to prove its majority after which beleaguered chief minister Thackeray quit office.
Earlier, the apex court had said it will hear a batch of pleas on the Maharashtra political crisis filed by the Shiv Sena factions led by Thackeray and Shinde on November 29.
On August 23, a three-judge bench of the top court headed by then chief justice N V Ramana had formulated several questions of law and referred to a five-judge bench the petitions filed by the factions raising several constitutional questions related to defection, merger and disqualification.
The top court had ordered the listing of petitions before the constitution bench and directed the Election Commission not to pass any orders on the Shinde faction’s plea that it be considered the real Shiv Sena and granted the party’s poll symbol.
It had said the batch of petitions raise important constitutional issues relating to the Tenth Schedule of the Constitution pertaining to disqualification, power of the Speaker and Governor and judicial review.
The apex court said the proposition of law laid down by the constitution bench in the Nabam Rebia case relating to Tenth Schedule stands on a contradictory reasoning which requires gap filling to uphold constitutional morality.
It had asked the constitution bench to look into constitutional issues whether notice for removal of speaker restricts him from continuing with disqualification proceedings, whether a petition under Article 32 or 226 lies against disqualification proceedings, can a court hold that a member is deemed to be disqualified by virtue of his/her actions, what is status of proceedings in the house pending disqualification petitions against the members.
The Tenth Schedule of the Constitution provides for the prevention of defection of the elected and nominated members from their political party and contains stringent provisions against defections.
The Thackeray faction of the Shiv Sena had earlier submitted that party MLAs loyal to Shinde can save themselves from disqualification under the Tenth Schedule of the Constitution only by merging with another political party.
The top court had asked the Shinde faction to redraft the legal issues of split, merger, defection and disqualification raised in petitions filed by the Thackeray camp that are to be adjudicated upon following the recent political crisis in Maharashtra.
The Shinde group had said the anti-defection law is not a weapon for a leader who has lost the confidence of his own party to lock his members and somehow hang on to power.
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