The Court referred to a larger bench the question of whether the issuance of a notice of intention to move a resolution for the removal of the Speaker restrains them from adjudicating disqualification petitions.
A five-judge Constitution Bench of the Supreme Court on Thursday referred to a larger bench, issues relating to the powers of the Speaker of a State Legislative Assembly as laid down in the 2016 judgment in the Nabam Rebia case [Subhash Desai v. Principal Secretary, Governor of Maharashtra & Ors.].
The Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha included the reference order in its judgment on the Maharashtra political crisis case that arose out of the rift between the Eknath Shinde and Uddhav Thackeray factions of the Shiv Sena.
The primary question to be decided by the larger bench would be “whether the issuance of a notice of intention to move a resolution for the removal of the Speaker restrains them from adjudicating disqualification petitions under the Tenth Schedule of the Constitution“.
In the case of Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, a five-judge Bench of Justices JS Khehar, Dipak Misra, MB Lokur, PC Ghose and NV Ramana ruled that it is impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule (anti-defection law) after a notice of intention to move a resolution for their removal from the office is issued.
The case had came up before the Court after the Indian National Congress (INC) formed the government in Arunachal Pradesh in 2015 and Nabam Rebia was elected as the Speaker of the Legislative Assembly.
Due to a rift within the INC, a chain of events similar to those that led to the Shinde-Thackeray split in 2022 took place in Arunachal Pradesh
After hearing the submissions of all the parties in the Maharashtra case, the Bench concluded that Nabam Rebia does not actually apply, considering its factual scenario.
Given below are the reasons why the Court decided to refer the matter to a larger bench.
1. Conflict between Nabam Rebia and five-judge bench decision in Kihoto Hollohan v. Zachillhu & Ors
The Kihoto Hollohan judgment, which was delivered in 1992, held that there is no reason to doubt the independence and impartiality of the Speaker. However, Nabam Rebia doubted the ability of the Speaker to remain neutral while deciding disqualification petitions after a notice of intention to remove the Speaker has been issued.
2. Incomplete consideration of Constituent Assembly Debates
The Nabam Rebia judgment referred to the Constituent Assembly Debates to interpret the phrase “all the then members” in Article 179(c) of the Constitution which deals with the removal of the Speaker by a resolution passed by the Assembly. It was held that the phrase “all the then members of the Assembly” meant that the composition of the Assembly ought not to be changed after the notice of intention to move a resolution for the removal of the Speaker was issued.
The Bench noted that the entirety of the discussion of the Constituent Assembly in this regard was not considered in Nabam Rebia.
3. Importance of Article 181
Article 181 of the Constitution provides that the Speaker shall not preside over a sitting of the Legislative Assembly while a resolution for their removal is under consideration.
The Court today said that Nabam Rebia did not consider the effect and import of Article 181, and whether the Constitution envisages the imposition of any restriction on the functions of the Speaker beyond the limited restriction imposed by Article 181.
4. Continuity of Speaker’s functions
The second proviso to Article 179 provides that whenever the Assembly is dissolved, the Speaker shall not vacate their office until immediately before the first meeting of the Assembly after the dissolution.
Nabam Rebia did not consider whether the Constitution envisages a restriction on the continuous performance of the functions of the Speaker under the Tenth Schedule in view of this provision, the Bench noted.
5. “Intention” to move resolution to remove Speaker
Nabam Rebia did not consider the possibility that a notice of intention to move a resolution for the removal of the Speaker may not culminate in such a motion being moved. In effect, the Speaker may be barred from adjudicating disqualification petitions based on the issuance of a notice of intention to move a resolution by one member of the Assembly.
6. Possibilty of misuse by MLAs
The Court also found that Nabam Rebia did not consider whether the temporary disablement of the functions of the Speaker is prone to misuse by Members of Legislative Assembly (MLAs) who anticipate that disqualification petitions will be instituted against them or by MLAs against whom disqualification petitions have already been instituted.
7. Suspension of operation of Tenth Schedule
Finally, the Court was of the opinion that Nabam Rebia created a “constitutional hiatus” in the operation of the Tenth Schedule because of the temporary disablement of the Speaker.
Pending the decision of the larger bench, as an interim measure, the Bench suggested that the Speaker be entitled to rule on applications asking them to refrain from adjudicating disqualification proceedings on the ground of initiation of a motion for their removal.
Depending on whether the Speaker believes the application to be well-founded or not, they can choose to adjourn or proceed with the hearing. However, this decision would be subject to judicial review.
Source : Bar And Bench
