Shiv Sena Case : Supreme Court Refers 'Nabam Rebia' Judgment To Larger Bench; Says It Is In Conflict With 'Kihoto Hollohan’ Judgment

In a significant development, a Constitution Bench of the Supreme Court on Thursday doubted the correctness of the law laid down in Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly that a Speaker will be disabled from initiating disqualification proceedings when a notice seeking their removal is pending.This happened in the case relating to the rift within the Shiv Sena party (Subhash Desai vs Principal Secretary to Governor of Maharashtra). Since Nabam Rebia was also delivered by a bench having equal strength of 5-judges, it has been referred to larger bench. Earlier, a 3-judge bench, while referring the case to 5-judge bench, had prima facie observed that the reasoning in Nabam Rebia appeared to be contradictory.A Bench comprising CJI DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha also laid down the procedure that is to be adopted pending the decision of the larger Bench.(i) The Speaker is entitled to rule upon and decide applications questioning their jurisdiction; and(i) The Speaker is entitled to rule on applications which require them to refrain from adjudicating proceedings under the Tenth Schedule on the ground of initiation of a motion for their removal under Article 179(c). A Speaker can examine if the application is bonafide or intended only to evade adjudication;(iii) If the Speaker believes that the motion is well founded, they may adjourn the proceedings under the Tenth Schedule till the decision for their removal is concluded. On the other hand, if they believe that the motion is not as per the procedure contemplated under the Constitution, read with the relevant rules, they are entitled to reject the plea and proceed with the hearing; and(iv) The decision of the Speaker, either to adjourn the proceedings under the Tenth Schedule in view of the pending proceedings under Article 179(c) or to proceed with the hearing will be subject to judicial review. As the decision of the Speaker relates to their jurisdiction, the bar of a qua timet action, as contemplated in Kihoto Hollohan will not apply.In Nabam Rebia, a Constitution Bench of the Apex Court had held that it is impermissible for a Speaker to adjudicate upon disqualification petitioners under the Tenth Schedule after a notice of intention to move a resolution for the removal from office is issued. Senior Advocates, Kapil Sibal, Abhishek Manu Sighvi and Devadatt Kamat appearing on behalf of the petitioners submitted that the judgment in Nabam Rebia be referred to a large Bench of seven judges. Senior Advocates, Harish Salve, Neeraj Kishan Kaul, Mahesh Jethmalani, Maninder Singh and Siddharth Bhatnagar appearing for the respondents along with Solicitor General of India, Tushar Mehta appealing for the Governor of Maharashtra opposed the plea seeking reference. In an order dated 17.02.2023, the Court had directed that the issue of reference is to be determined along with the merits of the case.Nabam Rebia Decision Should Be Reviewed As It Has Great Mischief Potential : PDT AcharySubmissions made by the parties The Senior Counsels for the petitioners argued that the decision in Kihoto Hollohan v. Zachillhu and that in Nabam Rebia are in conflict. In Kihoto Hollohan, another Constitution Bench had held that the Court cannot generally interfere in disqualification proceedings at an interlocutory stage. However, as per Nabam Rebia, the disqualification proceedings would be prohibited about the issuance of notice of intention to move a resolution for the removal of the Speaker, amounting to interference with disqualification proceedings at interlocutory stage. As per the petitioners the decision in Nabam Rebia can be misused by defecting MLAs in avoiding disqualification by disabling the Speaker from proceeding with the disqualification proceedings. However, in such a situation the Speaker would be left remediless. It was argued that the decision in Nabam Rebia creates a constitutional hiatus in the operation of the Tenth Schedule. Furthermore, it was averred that decision in Nabam Rebia indicates that the composition and strength of the House cannot be altered once a notice of intention to move resolution for removal of the Speaker is issued, which is in the teeth of Articles 179, 181 and Constitutional Assembly Debates. The Senior Counsels for the petitioners also pointed out that the disqualification of MLAs would relate back to the date on which they indulged in the conduct prohibited under the Tenth Schedule. Therefore, it would not be permissible for the disqualified MLAs to issue the notice for removal of the Speaker after the date they had indulged in the proscribed conduct. The Senior Counsels appearing for the respondents argued that the decision in Nabam Rebia was based on ethical and constitutional considerations. They submitted that if an MLA is unjustly disqualified by the Speaker and their disqualification is set aside by the Courts they would...

Shiv Sena Case : Supreme Court Refers 'Nabam Rebia' Judgment To Larger Bench; Says It Is In Conflict With 'Kihoto Hollohan’ Judgment

Sohini Chowdhury

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