The Supreme Court on Monday extended the time for Eknath Shinde and 15 other rebel MLAs in the Maharashtra State Legislative Assembly, to file written response to the Deputy Speaker's disqualification notice till July 12. The deadline was otherwise 5.30 PM today.
"Meanwhile as an interim measure, the time granted by the Deputy Speaker of the Assembly to the petitioners or other similarly placed Members of the Legislative Assembly to submit their written submissions upto today by 5.30P.M., is extended till 12.07.2022.," the vacation bench of Justices Surya Kant and JB Pardiwala ordered.
It further observed that the State shall make sure that the right granted to every citizen is protected. "Mr. Chitnis, learned counsel for the State of Maharashtra states that adequate steps have been already taken and the State Government shall further ensure that no harm is caused to the lives, liberty and properties of the 39 MLAs and their families", it recorded in the order.
The Court was hearing the petition preferred by rebel Shiv Sena leader Eknath Shinde challenging the disqualification notices issued by the Deputy Speaker to rebel MLAs for proceedings under the tenth schedule of the Constitution over alleged defection.
It was also considering another writ petition filed by Bharat Gogawale and 14 other Shiv Sena MLA's seeking to restrain the Deputy Speaker from taking any action in the disqualification petition until the resolution for removal of Deputy Speaker is decided.
It has issued notice to the Secretary of the Maharashtra Legislative Assembly and has granted time to the Respondents to file their counter affidavits, if any, within 5 days. The matter will be heard again on July 11.
Senior Advocate Rajeev Dhavan appearing for the Deputy Speaker orally assured the Court that no decision on disqualification will be taken in the meantime.
During the hearing, Senior Advocate Neeraj Kishan Kaul appearing for the petitioners argued that the Deputy Speaker cannot proceed with the disqualification proceedings when the resolution seeking his removal is pending.
Senior Advocate AM Singhvi, appearing for the Shiv Sena legislative party leader Ajay Chaudhary and Sunil Prabhu, Chief Whip, on the other hand, argued that Courts cannot interfere when the proceedings are pending before the Speaker. He submitted that no action will lie before the Court till the Speaker decides the notices finally.
Senior Advocate Devadatt Kamat appearing along with Singhvi raised a preliminary objection to the maintainability of the petition, stating that it is a case of "leapfrogging" to the Supreme Court bypassing the High Court.
Solicitor General Tushar Mehta appeared for the Centre.
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Maintainability under Article 32
Kaul submitted that the Deputy Speaker cannot proceed with the disqualification proceedings when the resolution seeking his removal is pending.
At the outset, the Bench inquired from the Petitioners as to why did they not approach the High Court.
To this, Kaul responded that existence of Article 226 is not a constitutional bar to invoke jurisdiction under Article 32 and that in several cases involving floor test, disqualification, etc. the Supreme Court has issued orders under Article 32.
He referred to Ashish Shelar & Ors. v. Maharashtra Legislative Assembly & Anr. to argue that in cases of extreme impropriety, the Supreme Court can interfere in exercise of its powers under Article 32.
Kaul also alleged that the atmosphere in Bombay is not conducive for the Petitioners to approach the High Court, since "a minority of the legislative party is subverting the state machinery, attacking our houses, saying that our dead bodies will be returned."
Singhvi argued that the petitioners have "leap frogged" to the Supreme Court, and have failed to give any reason as to why they should not be sent to the High Court.
Can Speaker decide disqualification proceedings pending resolution for his removal?
Kaul submitted that the Speaker or the Deputy Speaker cannot continue with the disqualification proceedings if his continuance is in doubt.
At this juncture, Justice Kant asked the Petitioners why did they not raise the issue of Deputy Speaker's incompetency before the Deputy Speaker himself.
Kaul responded that this was informed to the Deputy Speaker and he still proceeded with the notices.
He relied on Nabam Rebia v. Dy Speaker, Arunachal Pradesh Assembly, where it was held 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 Speaker, is pending.
"The office of Speaker, with which the Constitution vests the authority to deal with disqualification petitions against MLAs, must surely be a Speaker who enjoys confidence of the Assembly," the Supreme Court had said therein.
It was further of the view that, "Any change in the strength and composition of the Assembly, by disqualifying sitting MLAs, for the period during which the notice of resolution for the removal of the Speaker (or Deputy Speaker) is pending, would conflict with the express mandate of Article 179(c)."
The second issue, as per Kaul, is the manner in which the Deputy Speaker is proceeding, allegedly in undue haste, without following the principles of natural justice.
Singhvi on the other hand, primarily argued that Courts cannot interfere when the proceedings are pending before the Speaker.
He referred to Kihoto Hollohan vs Zachillhu & Ors. where it was held that "Judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia- timet action would not be permissible, nor would interference be permissible at an interlocutory stage of the proceedings."
He argued that even as per Nabam Rebia (supra), no action will lie before the Court till the Speaker decides finally.
"They have wrongly interpreted Nabam Rebia and presented before this Court… Nabam Rebia is consistent with Kihoto in holding that let Speaker decide finally…It says let the speaker decide wrongly, but only after a final decision will the Courts interfere," he said.
Justice Kant then asked Singhvi whether the issue in question, whether a Speaker whose removal under Article 179(c) is under consideration is competent to decide under 10th Schedule, has been considered in any of the cases.
In response, Singhvi referred to Article 212 to say that there is a Constitutional bar on the Courts inquiring into the legislative procedure. "Article 212 bars your lordships scrutiny when the Speaker is deciding. All internal management is barred from judicial scrutiny," he said.
"But are we really dealing with the proceedings of the Assembly?" Justice Kant asked.
Singhvi responded, "Yes, your lordships are dealing with the questions like notice not given, notice of 2 days not enough."
Why Nabam Rebia (supra) will not hold field? Bench asks Singhvi
Justice Kant pointed out that in Kihoto (supra), the very authority of Speaker was not challenged. Whereas in the present case, continuation of the Speaker is challenged.
Justice Pardiwala also opined that Nabam Rebia (supra) is a constitution bench judgment which is very close to the facts of the instant case. He said, "You have now been called upon to make us understand as to why the principle in Rebia should not be made applicable."
The Judge added, "If we want to ignore Nabam Rebia, prima facie we have to take the view that Article 212 was ignored or not considered in Nabam. Your entire edifice of argument is Article 212…"
Singhi argued that if Nabam Rebia (supra) is applied generically, it will be "disastrous". He submitted,
"In this case, press reports are rampant that these MLAs sent notice from an unverified email, and the Speaker rejected the no-confidence motion. That has not been challenged… The Deputy Speaker has taken on record the unverified letter and rejected it, which has to be challenged… On 20th these MLAs went to Surat, on 21st they are supposed to have written this mail, on 22nd Speaker received this notice. 14 days has not elapsed."
Dhavan pointed out that in Nabam Rebia (supra), the period of 14 days had elapsed. He added,
"It (notice) was not sent from the registered email. It was not sent to the legislative office. Deputy Speaker acts in a judicial capacity. If somebody dashes off a letter, not to the registered office, the Speaker is entitled to ask who are you."
Hearing this, Justice Kant orally remarked, "Then it will be contradictory. If there is no valid notice, there is no question of 14 days. The question will arise only if notice is valid."
The Court thus directed the Respondents to file a comprehensive affidavit detailing all these aspects.
Can court order interim stay on disqualification proceedings?
As the bench granted time for filing of counter affidavits, Dhavan orally assured the Court that no decision on disqualification will be taken in the meantime. However, Singhvi requested the Court to not record a statement made on behalf of the Speaker, as it will amount to breach of division between judiciary and legislature.
"Till a final order is passed, there is no question of judicial review and no question of interim order...No Court has ever granted a stay of disqualification process. The proceedings of the House will be interdicted," Kamat said.
However, Justice Kant orally remarked that they have to see that the petition does not become infructuous. "We only want the status quo to continue till we balance competing claims, all issues will be determined by us, for that we need your affidavits."
About the plea
The plea argued that the Deputy Speaker recognising Ajay Choudhury as the leader of the Shiv Sena Legislature Party (SSLP) is illegal.
Shinde, who claims to have the support of over 2/3rd MLAs of Shiv Sena had also prayed that the proceedings on the disqualification notices should be stopped until the issue relating to the removal of Deputy Speaker is decided.
The plea argues that the Deputy Speaker recognising Ajay Choudhury as the leader of the Shiv Sena Legislature Party (SSLP) is illegal. Shinde, who claims to have the support of over 2/3rd MLAs of Shiv Sena, prays that the proceedings on the disqualification notices should be stopped until the issue relating to the removal of Deputy Speaker is decided.
The main grounds in the petition are :
1. Deputy Speaker cannot disqualify any member under Schedule X of the Constitution during the pendency of a resolution seeking his removal.
2. Narhari Zirwal is officiating as the Deputy Speaker without resigning from the NCP and is actively participating in the activities of NCP. The ideology of Shiv Sena is opposed to NCP. Hence Zirwal is politically biased and cannot be expected to take an impartial and fair decision.
3. The Disqualification notices are not maintainable as mere absence from party meetings cannot be a ground for disqualification. The whip issued by the Party is applicable only to proceedings within the House.
4. Shinde asserts that he and his supporters have not given up Shiv Sena membership and their activities do not come within the meaning of the term "voluntarily giving up membership" under Paragraph 2 of the Tenth Schedule.
5. The majority of the party members had in any case annulled the appointment of Sunil Prabhu as the Chief Whip and had appointed Bharat Gogawale as the Chief Whip instead. So the whip issued by Prabhu is not valid.
Case Title: Eknath Rao Shinde v Dy Speaker, Maharashtra State Legislative Assembly & Ors| Diary No 19161 of 2022 & Bharat Gogawale & Ors. v Dy Speaker, Maharashtra State Legislative Assembly & Ors| Diary No 19162 of 2022