Yesterday (11 May), while pronouncing the judgement in the Shiv Sena matter, the Constitution bench of the Supreme Court referred Nabam Rebia ruling to a seven-judge bench.

We will try and understand what happened in Nabam Rebia and why this ruling assumes relevance in the Shiv Sena matter.

In Nabam Rebia & Bamang Felix Versus Deputy Speaker, Arunachal Legislative Assembly (2016), the Supreme Court had ruled that “it would be constitutionally impermissible for a Speaker of the House to adjudicate upon disqualification petitions under the anti-defection law as per Tenth Schedule while a motion of resolution for his/her own removal from Office of Speaker is pending”.

In the Supreme Court, the Eknath Shinde faction cited this Nabam Rebia ruling to contend that the deputy speaker is not empowered to proceed against the dissident Sena MLAs under the 10^th Schedule of the Constitution as a notice for his removal was pending.

On the other hand, contesting this, the Uddhav Thackeray camp had told the bench that by invoking it, MLAs who want to defect can pre-empt and stall disqualification proceedings against them by seeking the Speaker’s removal through a notice.

During the hearing before the Constitution Bench in February, the Shinde camp had argued that the matter had become academic and there was no reason to refer it to a larger bench.

Senior advocates Kapil Sibal and A M Singhvi, who appeared for the Thackeray side, urged the court to refer it to a seven-judge bench. Sibal contended that the matter had not become academic and that it has ramifications for the country’s democratic future.

He interestingly said, “This is not about today. This is about tomorrow….. Don’t thwart the issue by saying it does not arise. It will arise time and again. Elected governments will be toppled. And no democracy in the world allows this to happen…”

Appearing for the Shinde side, senior advocate Mahesh Jethmalani recalled the events from 2022 leading to Thackeray stepping down as chief minister, and said that the Supreme Court had then said that the Governor’s direction to hold a floor test will not prejudice the speaker's power to decide on the disqualification.

The Supreme Court today noted that some aspects were not considered in the Nabam Rebia judgement and among them was whether temporary disablement of the functions of the speaker under the 10^th Schedule is prone to misuse by the MLAs who anticipate that disqualification petitions will be instituted against them or by MLAs against whom disqualification petitions have already been instituted.

The court has referred the following question to the larger bench, “Whether the issuance of a notice of intention to move a resolution for removal of the Speaker restrains them from adjudicating disqualification petitions under the 10^th Schedule of the Constitution?”

The above question, and other allied questions will now be decided by the seven-judge bench.