Former Maharashtra Chief Minister Uddhav Thackeray on Tuesday said in the Supreme Court that the “artful” dodges legislators employ to subvert the Tenth Schedule (anti-defection law) to bring down governments in crucial States and the “sweeping discretion” available to Speakers in deciding cases of disqualification of legislators need a relook by a larger Bench of seven judges.
Appearing before a five-judge Bench led by Chief Justice of India D.Y. Chandrachud, senior advocate Kapil Sibal, for Mr. Thackeray, said legislators were using the anti-defection law to “serve the cause of political immorality”.
The Constitution Bench is hearing a series of petitions following the political crisis which rocked Maharashtra when current Chief Minister Eknath Shinde and his camp of followers rebelled against Mr. Thackeray and eventually brought down the Maha Vikas Aghadi government in early 2022.
Mr. Sibal referred to how legislators facing disqualification under the Tenth Schedule were now issuing notices of removal against the Speaker/Deputy Speaker. “When such a notice is issued to the Speaker or Deputy Speaker for his removal, he cannot act as a Tribunal under the Tenth Schedule… This has now become a device legislators under fire employ to stall their disqualification. Meantime politics takes over. The government falls. A new Chief Minister is appointed with the support of the rebel legislators. A new Speaker is installed and the disqualification proceedings are in limbo…,” Mr. Sibal submitted.
Mr. Shinde and 15 legislators were issued notices by then Deputy Speaker Narhari Zariwal in the disqualification petition filed against them by the Thackeray camp. However, the legislators responded by sending Mr. Zariwal notice for his removal.
Mr. Sibal said legislators were taking shelter under the 2016 judgment by a five-judge Bench of the Supreme Court in the Nabam Rebia case.
The Nabam Rebia judgment held that a Speaker or a Deputy Speaker facing notice of removal cannot decide disqualification proceedings against legislators. “So what happens is notice of removal is issued against the Speaker/Deputy Speaker just a day or so before the session ends. Thus, he cannot function as a Tribunal under the Tenth Schedule…,” Mr. Sibal explained.
He said the notice of removal against a Speaker or a Deputy Speaker should be moved while the House was in session and put to vote within seven days. “This would end all malpractice,” Mr. Sibal said.
Secondly, he argued that Speakers cannot be trusted to act as an “impartial body” under the Tenth Schedule as held by a five-judge Bench of the Supreme Court in a majority judgment in the Kihoto Hollohan case in 1992.
The senior lawyer said he agreed more with the minority view in the Kihoto Hollohan judgment that the post of the Speaker did not satisfy the requirement of an “independent adjudicatory authority” as his tenure depended on the continuous support of the majority of the House.
“Then who will decide the disqualification petitions? We cannot throw the baby out with the bathwater… There must be some constitutional certainty,” the court reasoned.
Mr. Sibal said the court should decide disqualification petitions. But the Bench did not agree, saying the court cannot enter into the domain of the House.
