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The Uddhav Thackeray-led faction of the Shiv Sena urged the Supreme Court on Tuesday to refer the cases related to the Maharashtra political crisis to a seven-judge bench for reconsideration of a 2016 judgment on powers of assembly speakers to deal with disqualification pleas.
Senior advocate Kapil Sibal, appearing for Shiv Sena (Uddhav Balasaheb Thackeray), submitted before a five-judge Constitution bench headed by Chief Justice DY Chandrachud that there is an imperative need to reconsider the law laid down in Nabam Rebia case.
"It's time for us to relook at Nabam Rebia and the 10th Schedule because it has created havoc," Sibal said.
He submitted the 10th Schedule seeks to prohibit and prevent the constitutional sin of political defections, which is recognised as a grave threat to the very existence of democracy.
"We have the 10th Schedule to serve the cause of political morality. This 10th Schedule is now subverting that. Today, the 10th Schedule is being misused by all governments. It has now been used to further political immorality," Sibal told the bench, which also comprised justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha.
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 judgment 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.
Sibal alleged in the top court that the Shinde faction abused the process of law by unlawfully appointing an assembly speaker who is completely biased against the group led by Thackeray.
"It is submitted that the impugned observations (in Rebia case) fail to consider the scope for misuse and the unconstitutional consequences that may flow from the position that a speaker cannot proceed with disqualification proceedings if notice for his removal is pending.
"The impugned observations give an escape route to 'constitutional sinners' who commit the sin of defection and are then protected by the mere issuance of a notice for removal of the speaker/deputy speaker," Sibal said.
He said the Shinde group moved a notice for removal of the deputy speaker (then exercising the functions of the speaker) on June 22, 2022, as soon as they committed the acts constituting disqualification, in order to prevent the impending disqualification petitions against them from moving forward.
"The mala fide of the respondents in this regard is evident from the fact that after the appointment of their own speaker on July 3, 2022, the motion for removal of the deputy speaker has not been taken up in the assembly till date," Sibal said.
The senior lawyer argued that the speaker performs a distinct role as a tribunal under the 10th Schedule, and therefore, the proceedings for his removal as an officer of the state legislature cannot disrupt the continuity and functioning of the tribunal.
"The impugned observations, by holding that disqualification petitions cannot be proceeded with on mere issuance of a notice for removal of the speaker, disregard and disrupt this continuity in the functioning of the speaker as a tribunal.
"The same amounts to the creation of a constitutional hiatus under the 10th Schedule, placing the disqualification proceedings under suspension, which is totally against the scheme of the 10th Schedule," Sibal said.
The hearing will continue on Wednesday when senior advocate Harish Salve will make submissions for the Shinde group.
The political crisis in the state had aggravated after the rebellion 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 N V 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.