SC reserves order on reviewing Nabam Rebia verdict in light of Shiv Sena split

The Uddhav Thackeray faction of the Shiv Sena told the Supreme Court on Thursday the constitutional issues that the June 2022 Maharashtra political crisis raised were not merely academic as they will arise time and again when elected governments are toppled.

Senior advocate Kapil Sibal, appearing for Shiv Sena-Uddhav Balasaheb Thackeray, argued before a five-judge constitution bench headed by Chief Justice DY Chandrachud that manipulations are being allowed within legislative parties to topple governments which is contrary to Tenth schedule.

"This is not about today. This is about tomorrow. It will arise time and again.This issue will arise time and again. Elected governments will be toppled. No democracy in the world allows this to happen. So please don't say this is academic. I beg of you. Do not allow Tenth schedule to topple an elected government. It is not just a narrow interpretation," Sibal told the bench which also comprised justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha.

The top court, which reserved its judgement on the issue of reference to a larger bench, said one of the aspects to be considered is whether the 2016 Nabam Rebia judgement was applicable at all to the case at hand.

"The resignation of the Chief Minister (Thackeray) obviated the floor test...so the voting pattern was not revealed...so does Nabam Rebia arise? ... Of course, interesting proposition... but can the court venture into this area without facts?" the CJI observed.

At the outset, senior advocate Mahesh Jethmalani, appearing for the Shinde faction, submitted that the 2016 Nabam Rebia judgement was the correct law and there was no reason to refer it to a larger bench in the facts of this case.

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 removal of the speaker is pending decision in the House.

The judgement had come to the rescue of the rebel MLAs led by Eknath Shinde, now the chief minister of Maharashtra.

The Thackeray faction had sought their disqualification even while 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.

Jethmalani argued there was no need to reconsider the correctness of the Nabam Rebia judgement and refer the matter to a larger bench.

Senior advocate Maninder Singh, also appearing for the Shinde group, told the bench that majority of Shiv Sena MLAs felt the need for an appropriate change in the leadership for proceeding further with the original ideology, philosophy and policies of the Shiv Sena.

"Having stood threatened by any such legitimate expression of dissent as Intra-Party democracy, the leader (former CM) sought to punish all these 40 Shiv Sena MLAs with a hurried action of anti-defection under the Tenth Schedule with the threat of their disqualification. The deputy Speaker -- proceeded to fulfil the desire of the leader of the party to disqualify these 40 Shiv Sena MLAs by a completely illegal process," he submitted.

Singh submitted the mandatory requirement of minimum seven days' notice was blindly disregarded and a notice was issued on June 25, 2022 stating that all these MLAs have to give their reply within two days.

The top court had said on Wednesday the issues related to the Maharashtra political crisis, triggered by the differences in the Shiv Sena, are "tough" constitutional questions to decide as they have "very serious" ramifications for the polity.

On Tuesday, Sibal along with advocate Amit Anand Tiwari, submitted it's time for a relook at the Nabam Rebia judgement as the Tenth schedule is being misused by all governments and has been employed to further political immorality.

The political crisis in the state had erupted after an open revolt in the Sena and, on June 29, 2022, the apex court had refused to stay the direction of the Maharashtra governor to the 31-month-old MVA government to take a floor test in the assembly to prove its majority after which Thackeray quit office.

On August 23, 2022, a three-judge bench of the top court headed by then chief justice NV Ramana, since retired, had formulated several questions of law and referred to the five-judge bench the petitions filed by the two Sena factions raising 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 prevention of defection of the elected and nominated members from their political party and contains stringent provisions against defections.