[Eknath Shinde v Uddhav Thackeray] SC Constitution bench defers to decide on the issue of reference of 5-judge bench decision of ‘Nabam Rebia’ to a larger bench

Nabam Rebia

Supreme Court: The Constitution bench of Dr. D.Y. Chandrachud C.J. and M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha J.J., protracted to decide the issue of reference of a 5-judge bench 2016 decision of Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1 (‘Nabam Rabia’) to a larger 7-judge bench.

The bench stated that during the course of the hearing, a preliminary submission was made before the Court to the effect that the decision of Nabam Rabia requires reconsideration by a 7-judge bench.

Senior Advocates Kapil Sibal, Manu Singhvi and Devadatt Kamat appearing on behalf of the Uddhav Thackeray led group sought a reference to a larger bench.

Their submissions were opposed by Senior Advocates Harish Salve, Neeraj Kishan Kaul, Mahesh Jethmalani, Maninder Singh and Siddharth Bhatnagar appearing on behalf of the Eknath Shinde faction. Tushar Mehta, Solicitor General of India appeared on behalf of the Governor of Maharashtra.

Arguments were concluded on the issue as to whether reference should be made in the correctness of the decision of Nabam Rebia to a larger bench.

The bench quoted the opinion of J.S. Khehar J., from Nabam Rebia Judgment:

“We hereby hold, that it would be constitutionally impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule, while a notice of resolution for his own removal from the Office of the Speaker, is pending.”

While reading the order in open Court, the bench pointed out the similar view taken by Dipak Mishra J.,

“When there is an expression of intention to move the resolution to remove him, it is requisite that he should stand the test and then proceed. That is the intendment of Article 179(c) and the said interpretation serves the litmus test of sustained democracy founded on Rule of Law; and the Founding Fathers had so intended, and the constitutional value, trust and morality unequivocally so suggest. It would be an anathema to the concept of constitutional adjudication, if the Speaker is allowed to initiate proceeding under the Tenth Schedule of the Constitution after intention to remove him from his Office is moved.”

The bench also quoted Madan B. Lokur J., from the Nabam Rebia judgment who had stated that

“In the view that I have taken, I am of the opinion that the view expressed by my learned Brothers relating to the power or propriety of the Speaker taking a decision under the Tenth Schedule of the Constitution with regard to the fourteen Members of the Legislative Assembly does not at all arise in these appeals.”

The Court held that “The issue of whether a reference to a bench of 7 judges should be made cannot be considered in the abstract, isolated and divorced from the facts of the case. Whether the above principle which has been formulated in Nabam Rebia has an impact on the factual position in the present case needs deliberation. In the above backdrop, the issue whether a reference of the decision in Nabam Rebia to a larger bench is warranted would be determined together with the merits of the case”.

The matter was reserved on the point of reference on 16-02-2023.

In Nabam Rebia, the Constitution bench in 2016 had ruled that the Speaker could not initiate disqualification proceedings when a resolution seeking his removal was pending.

The present case has its origination from the split of the Shiv Sena political party into two factions, one led by Uddhav Thackeray and the other by Eknath Shinde, who went on to replace Uddhav Thackeray as Maharashtra’s Chief Minister after the split.

‘Rebel’ MLAs of the Eknath Shinde faction had received disqualification notices from the then Deputy Speaker for acting against the party Whip while voting during the Member of Legislative Council elections in the State.

The matter was adjourned for hearing on 21-02-2023.

[Subhash Desai v. Governor of Maharashtra, 2023 SCC OnLine SC 160, order dated 17-02-2023]

*Simran Singh, Editorial Assistant summated the data.

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