Shiv Sena Rift : Uddhav Group Seeks Reference To 7-Judge Bench Of Supreme Court To Reconsider 'Nabam Rebia' Decision

In the cases related to the rift in the Shiv Sena party, Senior Advocate Kapil Sibal, representing the Uddhav Thackeray group, submitted before a 5-judge bench of the Supreme Court on Tuesday that the matter needs to be referred to a 7-judge bench, to consider the correctness of the 2016 judgment delivered by the Constitution Bench in Nabam Rebia versus Deputy Speaker.In Nabam Rebia, a 5-judge bench ruled that a Speaker cannot initiate disqualification proceedings when a resolution seeking his removal is pending. Sibal submitted before a 5-judge Bench comprising Chief Justice of India D.Y. Chandrachud, Justices M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha that the correctness of this proposition laid down in the Nabam Rebia is one of the issues referred to the Constitution Bench."One of the issues relate to the Nabam Rebia decision in respect of the removal of the Speaker. That issue may have to be dealt with 7 distinguished judges if we are able to persuade your lordships that the decision is wrong", Sibal submitted.CJI Chandrachud said that it is for the 5-judge bench to decide whether to refer the matter to the 7-judge bench and that arguments can be addressed on this issue.Sibal requested for a preliminary hearing on the issue of reference. CJI then told both the sides to submit a brief note of points on this issue. Senior Advocate Neeraj Kishan Kaul, appearing for the Eknath Shinde group and Solicitor General of India Tushar Mehta, representing the Maharashtra Governor, agreed to share written submissions in response to Sibal's proposal.The following order was passed :"Mr.Kapil Sibal, learned 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 Nabam Rebia (2016) 8 SCC 1 to a 7-judge bench. It has been agreed that Mr.Kapil Sibal shall circulate a brief note of his submission on the proposed reference to a 7-judge bench that he would seek. The note shall be circulated at least two weeks in advance to the other respondents. 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".The bench has posted the matter to January 10, 2023.It may be recalled that the Nabam Rebia decision had persuaded a 2-judge bench of the Supreme Court in freezing the disqualification proceedings initiated by the Deputy Speaker against the MLAs of Shinde group who had rebelled against the official group. The lawyers of Shinde faction argued that the Deputy Speaker was incompetent to initiate the disqualification proceedings as a notice seeking his removal is pending at the instance of the rebels. The other side argued that the rebels' action was a misuse of the Nabam Rebia principle as this can mean that the disqualification proceedings can be stalled by merely sending a notice seeking the Speaker's removal.Nabam Rebia Decision Should Be Reviewed As It Has Great Mischief Potential : PDT AcharyOn 23.08.2022, the 3-Judge Bench led by the then Chief Justice of India, N.V. Ramana had referred the issues arising out of the political rift in Shiv Sena to a Constitution Bench.The questions of law referred for the consideration of the Constitution Bench are as under -A. Whether the notice of removal of the speaker restricts him from continuing the disqualification proceedings under Schedule X of the Indian Constitution as held by the Court in Nabam Rebia;B. Whether a petition under Article 226 and Article 32 lies inviting a decision on a disqualification proceeding by the High Courts or the Supreme Court as the case may be;C. Can a court hold that a member is deemed to be disqualified by virtue of his/her actions absent a decision by the Speaker?D. What is the status of proceedings in the House during the pendency of disqualification petitions against the members?E. If the decision of speaker that a member was incurred disqualification under the Tenth Schedule relates back to the date of the complaint, then what is the status of proceedings that took place during the pendency of the disqualification petition?F. What is the impact of the removal of Para 3 of the Tenth Schedule? (which omitted "split" in a party as a defence against disqualification proceedings)G. What is the scope of the power of the Speaker to determine the whip and leader of house of the legislative party?H. What is the interplay with respect to the provisions of the Tenth Schedule?I. Are intra-party questions amenable to judicial review? What is the scope of the same?J. Power of the governor to invite a person to form the government and whether the same is amenable to judicial review?H. What is the scope of the powers of Election Commission of India with respect to deter an ex parte split within a party.The decision to refer was taken by the 3-Judge Bench upon consideration of the issues in a following batch of petitions...

Shiv Sena Rift : Uddhav Group Seeks Reference To 7-Judge Bench Of Supreme Court To Reconsider 'Nabam Rebia' Decision

LIVELAW NEWS NETWORK

Tags