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Explained: In Shiv Sena crisis, the issues before Supreme Court

In two petitions moved before the Supreme Court, the Maharashtra rebels have raised four key issues, involving provisions of the Constitution and Rules of the Assembly. Arguments on Monday referred to two major judgments of the court, Kihoto Hillohan (1992) and Nabam Rebia (2016).

Written by Omkar Gokhale , Edited by Explained Desk | Mumbai |
June 27, 2022 12:43:51 pm
Shinde, in his plea, has claimed that Zirwal, who is from the NCP, cannot act on the disqualification petition against the 16 MLAs because a separate notice of resolution seeking Zirwal’s removal is already pending.

The Supreme Court on Monday passed an interim order extending until 5.30 pm on July 12 the time granted by the Deputy Speaker of the Maharashtra Assembly, Narhari Zirwal, to 16 rebel Shiv Sena MLAs to reply to the disqualification notices served on them.

The Maharashtra government undertook to protect the life and properties of 39 rebel MLAs and their families. The Supreme Court will now hear the petitions — filed by rebel leader Eknath Shinde, and Bharat Gogavale and 14 other MLAs of the Shinde camp — on July 11.

It, however, refused to restrain the holding of a floor test in the Assembly until it hears the pleas next.

The background of the petitions

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Shinde, and Gogawale, whom the rebels have chosen Chief Whip of the Sena legislature party replacing Sunil Prabhu, sought a stay on the disqualification notices issued on June 25 to 16 Sena MLAs who did not attend a party meeting convened by Chief Minister Uddhav Thackeray.

They have also challenged the appointment, on June 21, of Ajay Choudhari as leader of the Shiv Sena Legislative Party (SSLP), replacing Shinde.

Zirwal gave the 16 MLAs 48 hours until Monday, June 27, to respond, failing which action would be initiated against them. In his petition, Shinde claimed that Zirwal, who is an NCP MLA, cannot act on the disqualification petition against the 16 MLAs while notice for a resolution seeking his removal remains pending.

Key arguments before the Supreme Court

ZIRWAL’S ALLEGED BIAS: The post of Speaker has been vacant since Nana Patole resigned in February 2021 to become president of the Maharashtra Congress. Shinde has argued that ordinarily, a member who has been elected as Speaker or Deputy Speaker resigns from the membership of his party — but Zirwal has not done so.

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According to the rebel camp, since Zirwal’s party (NCP) is supporting the “minority faction” of the Shiv Sena (that is still with Thackeray), his actions are “biased, based on mala fide and considerations totally against constitutional principles and to help his political party”.

While the Deputy Speaker is supposed to decide issues objectively, Shinde has said he “does not expect justice at all from Zirwal, who, it seems, is bent upon acting on the directions of the leaders opposed to the Petitioner (Shinde) and his colleagues”.

However, Shinde did not press this argument in court on Monday, and instead sought a stay on the disqualification proceedings as immediate relief.

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CHOUDHARI’S ‘ILLEGAL’ APPOINTMENT: The petition claimed that Choudhari’s appointment as leader of the SSLP was made by a “minority faction” of Sena MLAs — and under the Members of Maharashtra Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986, it was “illegal” and “unconstitutional” for Zirwal to ratify it.

Also, Shinde has said, despite being from the minority faction of the SSLP, Choudhari and Prabhu unlawfully made a petition to the Deputy Speaker under the Tenth Schedule of the Constitution, based on which the 16 MLAs were served notices.

Senior advocate Devadatt Kamat representing the Maharashtra government, argued that while the notice sent by the Thackeray faction was on the official letterhead of the party, the letter from the Shinde group was “purported to be of Shiv Sena”, claiming to be the majority faction.

Zirwal had rightly recognised Choudhari’s appointment based on the authentic party letterhead, Kamat said.

‘UTTER DISREGARD’ FOR SC 2016 RULING: Shinde has said that a notice to move a resolution for removal of Zirwal as Deputy Speaker under Article 179(c) of the Constitution and Rule 11 of the Maharashtra Legislative Assembly Rules, was submitted on June 21, before the disqualification notices were served on the rebels.

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The petition refers to the Supreme Court’s judgment in Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Legislative Assembly (2016), in which the court had held that if the Speaker faces a motion for his own removal first, both the constitutional provisions under the Tenth Schedule and Article 179(c) would have their “independent operational space preserved”.

The court had ruled that it would be “constitutionally impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule while a motion of resolution for his own removal from Office of Speaker is pending”.

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According to the rebel camp, the petition for disqualification was submitted to Zirwal after the notice for moving a resolution for his own removal was given, and therefore, the Deputy Speaker’s decision was in “utter disregard” of the 2016 SC ruling and, therefore, “non-maintainable”.

In response, Senior Advocate Abhishek Manu Singhvi for Choudhari submitted that the 1992 Constitution Bench judgment in Kihoto Hollohan v. Zachillhu had clearly laid down that courts cannot interfere until the Speaker makes a decision, and that the Speaker has sweeping discretion in deciding cases of disqualification of MLAs.

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Singhvi argued that courts can only aid the procedure that the Speaker or Deputy speaker is supposed to follow, and that Nabam Rebia cannot be misused to restrain the Speaker. He said that Article 212 bars the courts from inquiring into the proceedings of the legislature, and asserted that the Speaker was competent to decide a disqualification plea under the Tenth schedule of the Constitution when notice of his removal is under consideration.

Singhvi also questioned the petitioners’ “leap frogging” to the Supreme Court without approaching the High Court first, and challenged the maintainability of the plea. Senior advocate N K Kaul for the rebels argued that the apex court had the discretion to entertain the pleas.

Senior advocate Rajeev Dhawan representing Zirwal informed that the no-confidence motion against him was rejected as the genuineness or veracity of the notice could not be ascertained. The court asked whether the Speaker could be a judge in his own case, and asked Zirwal’s lawyer to place the new developments pertaining to rejection of the notice on record.

48 HRS TO RESPOND ‘AGAINST RULES’: Referring to Rule 7(3)(b) of the Maharashtra Legislative Assembly (Disqualification on Grounds of Defection) Rules, 1986, Shinde has said that persons who are sought to be disqualified are entitled to at least a 7-day period (further extendable) to submit their reply. But the June 25 notice gave the rebels only 48 hours, he has said.

According to the rebels, Zirwal “completely bypassed” the Rules, and his action was “nothing but an eyewash to put a façade of compliance of the rules”.

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First published on: 27-06-2022 at 12:43:51 pm
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