The Supreme Court is scheduled on Friday to pronounce its order on the question of whether a seven-judge Bench should re-examine its 2016 decision that a Speaker under a cloud should first clear his name before hearing disqualification petitions against legislators under the anti-defection law.
The court had reserved its order on Thursday.
A five-judge Bench led by Chief Justice of India D.Y. Chandrachud was 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 then-Chief Minister Uddhav Thackeray and eventually brought down the Maha Vikas Aghadi government in early 2022.
In 2016, a majority judgment of the Supreme Court in the Nabam Rebia case had held that a Speaker or Deputy Speaker facing notice of removal cannot decide disqualification proceedings against legislators.
But senior advocate Kapil Sibal, for Mr. Thackeray, argued that the Nabam Rebia judgment has a flip side too. Legislators facing disqualification under the Tenth Schedule are now issuing notices of removal against Speakers and Deputy Speakers in order to stall the proceedings against them.
“The Nabam Rebia judgment stops a Speaker from acting as Tribunal under the Tenth Schedule the moment he himself receives a notice for his removal… This has now become a device legislators are employing 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 had responded by sending Mr. Zariwal notice for his removal.
On Wednesday, Chief Justice Chandrachud said that the 2016 judgment raises tough constitutional issues.
On the one hand, the judgment incapacitates a Speaker or Deputy Speaker from functioning as a Tribunal under the Tenth Schedule until his position is ratified by the House. “Meanwhile, there would be a free flow of human capital from one political party to another,” Chief Justice Chandrachud had said.
On the other hand, allowing a Speaker or Deputy Speaker, who is himself under threat of losing his position in the House, to function as a Tribunal, may lead to bias. It could even allow the leader of a political party to cling on to power despite losing the faith of his or her flock.
“This would facilitate a leader of a political party to hold on to the status quo though he or she has really lost his or her leadership over a group of legislators… Both ends have very serious consequences,” the CJI had remarked.