SC final view on referring Nabam Rebia ruling to larger bench only after hearing merits of Sena rift

In the Nabam Rebia judgment, the Supreme Court had said that the Speaker of a House cannot decide a disqualification petition filed under the anti-defection law while a notice under Article 179(c) for the Speaker’s removal is pending.

“Whether it (judgment in Nabam Rebia vs Deputy Speaker) should be referred to seven judges cannot be considered in the abstract, isolated or divorced from the facts of the case. Whether the… principle which has been formulated in Nabam Rebia has an impact upon the facts of the present case needs deliberation. In the above backdrop, the issue whether reference of the decision in Nabam Rebia to a larger bench is warranted will be determined together with the merits of the case,” the bench also comprising Justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha said.

The prayer had risen in the context of petitions resulting from Maharashtra political fallout.

Pronouncing the order Friday, CJI Chandrachud said, We have kept the issue open but we do not have a complete view of it now. We must look at the overall layers of the matter. Therefore we have not decided whether reference can be made. We may take a call after we hear arguments on merits as well. We are not going into the merits only for the purpose of reference but we are going to hear the overall matter.”

After a three-day hearing, the five-judge Constitution bench had reserved its order in the matter on Thursday.

The Shinde group had cited the Nabam Rebia ruling when the crisis unfolded in June last year to contend that the Deputy Speaker cannot proceed under the Tenth schedule against the dissident Sena MLAs as a notice seeking his removal was pending.

Contesting this, the Thackeray camp had told the bench that by invoking it, MLAs who want to defect can pre-empt and stall disqualification proceedings against them by seeking the Speaker’s removal through a notice.

During the hearing before the Constitution bench this week, the Shinde camp argued that the matter had become academic and there was no reason to refer it to a larger bench.

Senior advocates Kapil Sibal and A M Singhvi, who appeared for the Thackeray side, urged the court to refer it to a seven-judge bench. Sibal contended that the matter had not become academic and that it has ramifications for the country’s democratic future. “…This is not about today. This is about tomorrow,” he said. “Don’t thwart the issue by saying it does not arise. It will arise time and again. Elected governments will be toppled. And no democracy in the world allows this to happen…”

Singhvi argued that the court must not distinguish the Rebia decision from the Sena matter. “Distinguishing Nabam Rebia will generate [more] future litigation than solve any problem. In a binary sense, either this Court agrees or refers it,” he submitted.

Appearing for the Shinde side, senior advocate Mahesh Jethmalani recalled last year’s events leading to Thackeray stepping down as chief minister and said that the Supreme Court had then said that the Governor’s direction to hold a floor test will not prejudice the Speaker’s power to decide on disqualification. However, Thackeray resigned even before the floor test, as he realised that he did not have the requisite numbers, and there was thus no prejudice to the Speaker to exercise his power of disqualification, Jethmalani submitted.

The CJI had remarked during the hearing that the matter raises “tough constitutional questions to answer on both counts”.