Blow for Uddhav as SC refuses to refer 2016 Nabam Rebia verdict to larger bench

The Supreme Court on Friday declined to refer pleas related to the June 2022 Maharashtra political crisis triggered by the Shiv Sena's division to a seven-judge bench for reconsideration of the 2016 Nabam Rebia judgment.

In 2016, a five-judge Constitution bench, while deciding the Nabam Rebia case of Arunachal Pradesh, had held that the assembly speaker cannot proceed with a plea for disqualification of MLAs if a prior notice seeking the speaker's removal is pending before the House.

The judgment came to the rescue of the rebel Shiv Sena MLAs led by Eknath Shinde, now the chief minister of Maharashtra. The party's Uddhav Thackeray faction had sought their disqualification even when a notice of the Shinde group for the removal of Maharashtra assembly deputy speaker Narhari Sitaram Zirwal, a Thackeray loyalist, was pending before the House.

The top court said the issue whether a reference to a larger seven-judge bench is to be made cannot be considered in an "abstract, isolated and divorced" manner.

A five-judge Constitution bench headed by Chief Justice D Y Chandrachud said whether the 2016 Nabam Rebia judgment requires reference or not will be considered with the merits of the case on February 21.

"Whether the principle formulated in Nabam Rebia has an impact on the factual position in the present case needs deliberation. The issue whether the reference of the decision in Nabam Rebia to a larger bench is warranted would be determined together with the merits of the case.

"Consequently, hearing on merits of the case will be held on Tuesday, 10.30 am," said the bench, which also comprises justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha.

Senior advocates Kapil Sibal and A M Singhvi, appearing for the Thackeray faction, had sought reference of the cases to a seven-judge bench for a relook at the Nabam Rebia judgment.

Senior advocates Harish Salve and N K Kaul, appearing for the Shinde-led faction, had opposed the reference to a larger bench.

Solicitor General Tushar Mehta, appearing for the Maharashtra governor, had also opposed any move to refer the matter to a larger bench.

The political crisis in Maharashtra had erupted after an open revolt in the Sena and, on June 29, 2022, the apex court refused to stay the Maharashtra governor's direction to the 31-month-old MVA government to take a floor test in the assembly to prove its majority. Thackeray resigned as the chief minister before the floor test.

On August 23, 2022, a three-judge bench of the top court headed by the then chief justice N V Ramana had formulated several questions of law and referred to the five-judge bench petitions filed by the two Sena factions which raised several constitutional questions related to defection, merger and disqualification.

It had said the batch of petitions raised important constitutional issues related to the 10th Schedule of the Constitution pertaining to disqualification, powers of the speaker and governor, and judicial review.

The apex court had said the proposition of law laid down by the Constitution bench in the Nabam Rebia case stands on a contradictory reasoning which requires gap filling to uphold constitutional morality.

The 10th Schedule of the Constitution provides for the prevention of defection of the elected and nominated members from a political party and contains stringent provisions against it.