Maharashtra crisis: SC to deliver judgement on reference to 7-judge bench on February 17

A five-judge constitution bench headed by Chief Justice D Y Chandrachud heard submissions from lawyers appearing for Uddhav Thackeray and Eknath Shinde factions

The Supreme Court is scheduled to deliver its judgement on Friday on a plea made by Uddhav Thackeray's Shiv Sena to refer the five-judge bench decision in Nabam Rebia case of 2016 to a seven-judge bench.

While reserving its judgement on Thursday, the court wondered if it can venture into the correctness of the previous judgement when the factual circumstances in Maharashtra political crisis do not arise.

The Thackeray faction contended the judgement which restricted the power of the Speaker to examine disqualification petition if a resolution of his own removal was pending, was prone to misuse for the benefit of defecting MLAs.

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The consequent disqualification under the Tenth Schedule can be avoided by disabling the Speaker from proceeding with disqualification proceedings, merely by issuing a notice for removal under Article 179 of the Constitution, the group claimed.

On Thursday, the five-judge bench presided over by Chief Justice of India D Y Chandrachud wrapped up the arguments on point of reference after hearing a host of counsel from Thackeray faction led by senior advocate Kapil Sibal and Eknath Shinde's group represented by Harish Salve.

The bench observed, "We have seen how vexed the Nabam Rebia can be? The judgement has laid down a principle. Before we decide to enter upon this to review it, we have to be sure it strictly arises in this case."

"The correctness of Nabam will arise if the Speaker stood injuncted by this court from exercising power. Here, (in Maharashtra crisis) the Speaker created a problem for himself, may be out of political exigency. The Speaker only gave two days notice to rebel MLAs on disqualification petition. This court extended the time to file the reply. Meanwhile, a trust vote takes place. The government decides not to face it and resigns," it said.

The bench, also comprising Justices M R Shah, Hima Kohli, Krishna Murari and P S Narasimha, further pointed out in the instant case the resolution against the Speaker was not tested in house.

"The resignation by the Chief Minister obviated the floor test. As a result of that, the consequences of the votes, which would have otherwise been cast by persons sought to be disqualified, did not emerge. So the Nabam Rebia does not arise. The question is now if the court can venture into the correctness of Nabam Rabia when the factual circumstances do not arise," the bench orally said.

Sibal, for his part, responded that twice the voting happened in state Assembly one when the floor test happened for Shinde, then again when the new Speaker was elected, defying the party whip.

"The problem with the Nabam judgement is it says the moment the notice is given Speaker cannot preside. These are serious issues," he said, adding the here the elected government was toppled and the Speaker could not do anything.

On this, the bench asked, "If it is not a case of defection, but a case of realignment, where the CM is in minority, and the CM sees the writing on the wall and the Speaker issues notice, should the Speaker restrain it till some time?"

Sibal also said under the Tenth Schedule (anti-defection law), there is no defence of majority. Only defence is merger. That is not there. Even if CM is in minority, assuming so, the rebel MLAs are still liable to disqualification.