SC refers Nabam Rebia verdict to larger bench says it is in conflict with Kihoto Hollohan judgment
The Supreme Court on Thursday, in the Maharashtra political case, referred to a larger bench, its 2016 ruling in the Nabam Rebia case.
By Srishti Ojha: The Supreme Court on Thursday, in the Maharashtra political case, referred to a larger bench its 2016 ruling in the Nabam Rebia case, where it was held that the Speaker of a House can’t decide a disqualification petition filed under the anti-defection law while a notice under Article 179(c) for the Speaker’s removal is pending.
This has been done while observing that ruling in Nabam Rebia does not apply to the factual scenario of the Maharashtra case before the court.
A three-judge bench of the Supreme Court, through its order dated 23 August 2022, had referred the Nabam Rebia verdict to a constitutional bench. The court had formed a prima facie opinion that the proposition of law laid down in Nabam Rebia stands on contradictory reasoning, which requires gap-filling to uphold constitutional morality.
CONTRADICTION WITH HOLLOHAN KIHOTO VERDICT
The SC constitution bench has now said that the Nabam Rebia is in conflict with the judgment in the Kihoto Hollohan case while citing it as one of the reasons for reference.
It’s important to note that in the present case, on June 27, 2022, a bench of Justice Surya Kant and Justice JB Pardiwala granted an extension in time to MLAs from the Shinde faction to reply to their disqualification notices.
The correctness of the order was debated, since according to the Kihoto judgment, the court could not interfere in the jurisdiction of a Speaker, except in case of an interim disqualification.
It was then argued before the constitution bench that the June order relied on the decision of the Nabam Rebia case to injunct the Deputy Speaker from adjudicating the disqualification petitions.
However, the court has refused to accept the submission and clarified that it only granted an extension of time to the persons against whom disqualification petitions were filed, to file their written submissions, in view of the principles of natural justice.
Calling the two verdicts contrary, the court has stated that the decision in Kihoto Hollohan holds that there is no reason to doubt the independence and impartiality of the Speaker when adjudicating on proceedings under the Tenth Schedule.
In contrast, in Nabam Rebia verdict, Supreme Court had doubted the ability of the Speaker to remain neutral while deciding disqualification petitions after a notice of intention to move a resolution for the removal of the Speaker has been issued.
OTHER REASONS FOR REFERENCE
The Supreme Court said that Nabam Rebia did not consider whether temporary disablement of the functions of the Speaker under the Tenth Schedule is prone to misuse by MLAs who anticipate that disqualification petitions will be instituted against them or by MLAs against whom disqualification petitions have already been instituted.
Nabam Rebia did not consider that a “constitutional hiatus” in the operation of the Tenth Schedule ensues because of the temporary disablement of the Speaker.
In Nabam Rebia case, SC appears not to have noticed the entirety of the discussion in the Constituent Assembly regarding the phrase “all the then members” while using the Constituent Assembly debates as an internal aid of interpretation.
The majority in Nabam Rebia case did not consider the effect and importance 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.
SC did not consider if the Constitution envisages a restriction on the continuous performance of the functions of the Speaker under the Tenth Schedule in view of this provision.
By referring to this case, the court has, in a way, allowed the Thackeray faction's request for referral of the case as it was the senior lawyers appearing on behalf of the Thackeray faction that had argued that the Nabam Rebia judgment be considered by a larger bench.
A Bench comprising CJI DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha also laid down the procedure that is to be adopted pending the decision of the larger bench.
(i) The Speaker is entitled to rule upon and decide applications questioning their jurisdiction;
(ii) The Speaker is entitled to rule on applications which require them to refrain from adjudicating proceedings under the Tenth Schedule on the ground of initiation of a motion for their removal under Article 179(c). A Speaker can examine if the application is bonafide or intended only to evade adjudication;
(iii) If the Speaker believes that the motion is well founded, they may adjourn the proceedings under the Tenth Schedule till the decision for their removal is concluded. On the other hand, if they believe that the motion is not as per the procedure contemplated under the Constitution, read with the relevant rules, they are entitled to reject the plea and proceed with the hearing; and
(iv) The decision of the Speaker, either to adjourn the proceedings under the Tenth Schedule in view of the pending proceedings under Article 179(c) or to proceed with the hearing will be subject to judicial review. As the decision of the Speaker relates to their jurisdiction, the bar of a qua timet action, as contemplated in Kihoto Hollohan will not apply.