Thackeray’s faction had initially petitioned the vice president, who was officiating as speaker in the absence of a regular one, seeking the disqualification of 16 MLAs, including Shinde. But Sena’s rebel faction preempted the move by mailing a notice of the vice president’s removal, which was then held to disqualify them based on the SC’s 2016 ruling in Nabam Rebia case.
Although the fight between Thackeray’s faction and the Shinde-led group has ended, they have continued to turn it into a struggle for the speaker’s powers, bringing in renowned high-level supporters to take a divergent view in reference to the Rebia judgment (the Thackeray faction supporting it and the Shinde group opposing it) to a bench of seven judges.
In the Rebia case, which involved defections in Arunchal Pradesh, the apex court had held that a motion of no confidence in the speaker would act as a limit on its power to disqualify MLA for breach of the Anti-Defection Act.
A Chief Justice constitution bench DY Chandrachud and the judges Mr Shah, Krsna Murari, Hima Kohli and PS Narasimha listened to the arguments of both sides for three days before reserving their verdict, giving equal importance to the consequences of keeping the Rebia judgment intact or revising it.
For the Shinde faction, Senior Advocate Mahesh Jethmalani he said the Rebia ruling rightly prevented a speaker from being banned for his removal from the decision on ban petitions against the MLA as if he had done so, it would have altered the composition of the assembly by excluding those who opposed the CM.
Senior lawyer Maninder Singh, supporting Jethmalani, said that if the Constitution has required the speaker not to preside over the House during the motion for his removal to maintain the impartiality of the president, the same impartiality must be given importance to exclude his bias while deciding the grounds for disqualification against MLA. “After all, he is able to shorten an elected member’s term and force new elections in an electoral college,” he said.
Faction adviser Thackeray Kapil Sibal and AM Singhvi said that the Constitution never provided for limiting the speaker’s power when the rebel group’s challenge to the party whip was evident and disqualification was a clear possibility under the anti-defection law. If the SC is to protect political morality and prevent similar incidents from happening again in Maharashtra in the future, the Rebia ruling needs to be reconsidered, they said.
The bench said the arguments shed light on two sets of consequences and both appear grim for politics. But the court said that to answer a constitutional question, the court needed a factual basis of the case to appreciate a political situation that raises such questions.
“In the present case, the (vice) president created the problem by giving only two days to the MLAs to respond to the disqualification petition (Sena’s rebel MLAs were then holed up in Guwahati). The CS on June 27 asked the speaker to give until July 12 to respond. Meanwhile, the governor called for a floor test, which the CM failed to address and resigned (on June 29). Had the CM cast the vote of confidence (on June 30), MLAs who voted against the party could have been identified and prosecuted under the anti-defection law. But that eventuality was thwarted with his resignation.
