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Nabam Rebia case 'allows free flow of human capital, also political status quo': Supreme Court

Supreme Court, The Supreme Court Of India, New Delhi
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5 Dariya News

New Delhi , 15 Feb 2023

The Supreme Court on Wednesday said it is not easy to answer a plea for a relook at the 2016 Nabam Rebia case judgment, which restricted the power of the Speaker to examine disqualification petition if a resolution for his removal is pending, in view of serious consequences in the context of the Maharashtra political crisis.

A five-judge bench, headed by Chief Justice of India D.Y. Chandrachud, said that if one would consider Nabam Rebia position in the context of Maharashtra, it allows the free flow of human capital from one party to another.

At this juncture, senior advocate Kapil Sibal, representing the Uddhav Thackeray faction, said the bench had put it appropriately and added that at first brush it is correct but the politics of defection cannot be decided in the House and "you have to go back to the political party".

The Chief Justice added: "The second end is that even if the leader of the political party has lost his flock, he can hold it down... thus adopting it would be ensuring a political status quo. 

Whichever way you accept, it has very serious consequences and is not desirable." The Eknath Shinde group argued that it is a case where the then Chief Minister Uddhav Thackeray lost the faith of majority of MLAs and stressed that on display, it is dissent and not defection, and anti-defection is not anti-defection law. 

The group further argued that it is not a constitutional issue but issue of political morality and steps to remove a leader do not fall under the Tenth Schedule. The 2016 judgment had come to the rescue of the rebel MLAs led by Eknath Shinde, now the Chief Minister of Maharashtra.

Senior advocate Harish Salve, representing Shinde group, opposed the reference of the cases related to the Maharashtra political crisis to a seven-judge bench for reconsideration of the 2016 Rebia case judgment.

Salve submitted before the bench -- which also comprised Justices M.R. Shah, Krishna Murari, Hima Kohli, and P.S. Narasimha -- that the issues which have now transpired are such that there is no need for reference.

He said the issues for consideration in this case are an "academic exercise", especially after the resignation of Thackeray as the Maharashtra CM, after he realised that he will fail the floor test.

However, the bench said it is not academic and if there was no floor test communication from the Governor, then Thackeray wouldn't have resigned and if he had to face the Assembly, he didn't have the numbers.

Senior advocate Neeraj Kishan Kaul, also appearing for the Shinde faction, said internal dissent in a party is the essence of democracy and should be encouraged.

The bench, citing Article 181 of the Constitution which stated that the Speaker should not preside, while a resolution for his removal is pending, said: "If you interpret it quite literally, there is only one disability on the Speaker."

The bench further added that when a motion for disqualification is there, the Speaker cannot preside on the motion but he can participate in it. "Save and except this disability, the Constitution places no other disability on the Speaker. 

If a Speaker presides the motion of his removal, he will be violating the rule against bias...". Salve argued that there are layers of political morality in all of this and it is best the court stay away from all of this, as these are complex questions.

The bench observed: "Nabam Rebia becomes correct or wrong based on which side you are on..." In his submission, Solicitor General Tushar Mehta said the contention by Thackeray faction that the observations in Nabam Rebia provided an escape route to constitutional sinners and that the judgment failed to consider the possibility of misuse for avoidance of disqualification proceedings by mere issuance of notice for removal of the Speaker, is wholly unsustainable.

He stressed that there is no graver constitutional sin than a minority government being in power. The apex court will continue to hear the matter on Thursday. In December last year, the Thackeray faction had asked the Supreme Court to refer the judgment in the Nabam Rebia case to a seven-judge bench.

In August this year, a three-judge bench of the apex court had said that a five-judge constitution bench will hear a batch of petitions filed by the Shinde and Thackeray faction on queries related to defection, merger and disqualification. 

The three-judge bench of the apex court, in its reference order, had framed first issue whether notice for removal of a Speaker restricts him from continuing with disqualification proceedings under Tenth Schedule of the Constitution, as held by the top court in Nebam Rabia (by a five-judge bench).

Thackeray suffered a major setback after Shinde and other MLAs rebelled against him and ousted him as Maharashtra CM. They also laid claims to the Shiv Sena party and its symbol as well.


Tags: Supreme Court , The Supreme Court Of India , New Delhi



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