The Thackeray faction had initially filed petitions with the deputy speaker, who was officiating as the speaker in the absence of a regular one, seeking disqualification of 16 MLAs, including Shinde. But the rebel Sena faction pre-empted the move by sending a notice for removal of the deputy speaker, who then got restrained to disqualify them on the basis of the SC’s 2016 judgment in the Nabam Rebia case.
Though the tussle between the Thackeray faction and the Shinde-led group has ended, they have soldiered on in turning it into a fight over the powers of the speaker, engaging renowned senior advocates to take a divergent view on reference of the Rebia judgment (Thackeray faction supporting it and Shinde group opposing it) to a seven-judge bench.
In the Rebia case, involving defections in Arunchal Pradesh, the apex court had held that a no-confidence motion against the speaker would act as a restraint on his power to disqualify MLAs for violation of the Anti-Defection Act.
A constitution bench of Chief Justice D Y Chandrachud and Justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha heard arguments from both sides for three days before reserving its verdict, while attaching equal importance to the consequences of either keeping intact the Rebia ruling or reviewing it.
For the Shinde faction, senior advocate Mahesh Jethmalani said the Rebia judgment rightly restrained a speaker facing notice for his removal from deciding disqualification petitions against MLAs as if he did so, he would be altering the composition of the assembly by disqualifying those opposed to the CM.
Senior advocate Maninder Singh, supporting Jethmalani, said if the Constitution mandated the speaker not to preside over the House during the motion for his removal to maintain impartiality of the Chair, the same impartiality must be given importance to rule out his bias while deciding disqualification pleas against MLAs. “After all he is capable of cutting short an elected member’s tenure and thrust fresh elections on a constituency,” he said.
Thackeray faction counsel Kapil Sibal and A M Singhvi said the Constitution never envisaged restricting the speaker’s power when defiance of party whip by the rebel group was apparent and disqualification was a clear possibility under the anti-defection law. If the SC wants to protect political morality and prevent repetition of Maharashtra-like incidents in the future, the Rebia ruling must be reconsidered, they said.
The bench said the arguments have thrown light on two sets of consequences and both appear grim for the polity. But the bench said that to answer a constitutional question, the court needed a factual basis of the case to appreciate a political situation throwing up such issues.
“In the case in hand, the (deputy) speaker created the problem by giving just two days to the MLAs to respond to the disqualification petition (the rebel Sena MLAs then were holed up in Guwahati). The SC on June 27 asked the speaker to give time till July 12 for them to respond. Meanwhile, the governor called for a floor test, which the CM did not face and resigned (on June 29). If the CM had taken the trust vote (on June 30), the MLAs voting against the party could have been identified and proceeded against under the anti-defection law. But that eventuality was obviated by the resignation,” the bench said.