Maharashtra Political Crisis Day #2: Sr. Advs. Salve and Kaul Argue Against 7-Judge Bench Reference
Disqualification Proceedings Against Maharashtra MLAsThe CJI D.Y. Chandrachud-led Constitution Bench continued to hear arguments on whether the case should be referred to a 7-Judge Bench in order to reconsider the SC’s 2016 decision in Nabam Rebia v Deputy Speaker. Senior Advocates Harish Salve and Neeraj Kishan Kaul, representing the Mahrashtra government and the rebel MLA’s respectively, argued against the reference.
Sr. Adv. Salve: Nabam Rebia Decision Does Not Apply In This Case
In Nabam Rebia, the SC held that the Speaker of the House cannot disqualify other members if they are facing a motion for their removal. In yesterday’s hearing, the petitioners raised the concern that this decision may allow MLAs to vote even if they are facing disqualification proceedings.
Mr. Salve began his arguments by stating that this was a hypothetical situation that had nothing to do with the circumstance of this case. Here, former Chief Minister Uddhav Thackaray resigned on June 29th before any vote or floor test could take place. As a result, none of the rebel Shiv Sena MLA’s voted.
CJI Chandrachud observed that it was the the SC’s Orders that sealed the fate of the party. On June 27th, 2022, the SC gave the rebel MLAs more time to respond to the disqualification notice. On June 29th, the SC refused to stay the floor test that was scheduled for the very next day. Following these Orders, the writing was on the wall for the Uddhav Thackaray faction of the Shiv Sena.
However, Mr. Salve disagreed. He claimed that even if Mr. Thackeray did not resign, he did not have the votes in the Legislature to remain Chief Minister. In that hypothetical situation, Nabam Rebia may have been relevant. But it does not apply in the current scenario.
Sr. Adv. Kaul: Nabam Rebia Does Not Need To Be Revisited
Mr. Kaul referred to the Maharashtra Legislative Assembly Rules which provide the procedure for the Speakers’ removal. They state that the Speaker must be given 14 days’ notice if there is a motion to remove them. After that, if at least 29 members support the motion, at least 7 more days must pass before it can be put to a vote.
In a brief aside, CJI Chandrachud acknowledged the complexity of the issue before them. On one hand, if Speakers’ power to disqualify is negated then there will be a ‘free flow of human capital’ from one party to another. On the other hand, if we overrule Nabam Rebia then a leader of a party in power can continue to exercise power even if they no longer hold a majority. Both options are not desirable and will have very serious consequences.
Mr. Kaul clarified that there is no question of defection in this case. Merely internal dissent within the party which members are entitled to and must be encouraged. The Constitution Bench need not deal with possible procedural issues raised by the petitioners. At its core, the Nabam Rebia decision ensures the Speaker cannot be a Judge in their own cause & disqualify MLAs before the motion for their removal is decided.