A view of the Supreme Court of India. , Photo credit: The Hindu
SC fixes hearing on Friday, February 17, 2023 the qualities of a bitter political battle between rivalsCiting a legal question based on a 2016 verdict, the seven-judge bench asked Maharashtra Chief Minister Eknath Shinde and his predecessor Uddhav Thackeray to exert control over the Shiv Sena and not to deviate from the factual aspects of the dispute.
During the hearing of the case, Mr Thackeray’s camp questioned the correctness of the legal principle laid down by a constitution bench in the Nabam Rebia case in 2016 that a Speaker who is facing a notice of motion for removal can act against legislators. Cannot decide disqualification proceedings. Anti-Defection Law (Tenth Schedule) without first clearing their names.
Senior advocate Kapil Sibal, appearing for Mr Thackeray, had argued that the principle in the Nabam Rebia case had to be referred and re-examined before proceeding with the hearing by a larger bench of seven judges. Shinde-Thackeray controversy,
They had argued that the doctrine tied the hands of the Speaker, rendering him unable to function as a tribunal under the Tenth Schedule, giving a free hand to horse-trading in the House.
He pointed out how the Shinde group, which was facing disqualification proceedings last year before the fall of the Thackeray government, took advantage of Nabam Rebia’s decision by issuing a notice to remove the then deputy speaker Narhari Jariwal from the post.
The Thackeray camp urged the five-judge bench led by Chief Justice of India DY Chandrachud, which is hearing the dispute, to refer the legal question to a larger bench before continuing to examine the merits of the case.
larger bench reference
Contrary to Mr Sibal’s view, a five-judge bench on Friday said it cannot make such a reference in “abstract”. Reading out the short order, Chief Justice Chandrachud said the question of referring to a larger bench cannot be “separated or separated” from the facts of the Shinde-Thackeray tussle.
“Whether the principle formulated in the Nabam Rebia judgment has bearing on the factual position of the present case requires deliberation. In the above background, the issue whether the decision in Nabam Rebia deserves to be referred to a larger Bench shall be determined with the merits of the case,” Chief Justice Chandrachud ordered for the division bench.
The apex court listed the matter for hearing on merits on February 21.
A five-judge bench headed by Chief Justice of India DY Chandrachud was hearing a series of petitions following the political crisis that rocked Maharashtra, when the current Chief Minister Shinde and his supporters staged a protest against the then Chief Minister Thackeray. revolted and eventually brought down the Maha Vikas Aghadi. In early 2022, Govt.
Mr Sibal said the legislators were abusing the Tenth Schedule by misusing the Nabam Rebia judgement, thereby “destroying democracy”.
“The Nabam Rebia judgment debars a Speaker from acting as a tribunal under the Tenth Schedule the moment he receives notice to remove himself… It has now become a tool that legislators use to prevent their disqualification. are employed. Meanwhile, politics dominates. Government falls. A new Chief Minister is appointed with the support of the rebel MLAs. A new chairman has been installed and the disqualification proceedings are in limbo…” was submitted by Mr Sibal.
The Shinde camp and even the Governor of Maharashtra protested that the Tenth Schedule was an anti-defection law and not an “anti-dissenter law”.
On Wednesday, Chief Justice Chandrachud had said that the 2016 judgment raised “difficult” constitutional issues.
On the one hand, the judgment disqualified a Speaker/Deputy Speaker from acting as a Tribunal under the Tenth Schedule until his position has been confirmed by the House.
Chief Justice Chandrachud had said, “In the meantime there will be free flow of human capital from one political party to another.”
On the other hand, allowing a Speaker or Deputy Speaker, who is at risk of losing his position in the House himself, to act as a tribunal may lead to partisanship. It can also allow the leader of a political party to cling to power despite losing the confidence of his flock.
The CJI had remarked, “This would enable the leader of a political party to maintain the status quo even if he has actually lost his leadership over a group of legislators… both ends have very serious consequences.”