Why The 2016 Nabam Rebia Ruling Has Been Referred To A 7-Judge Bench?

The Supreme Court has referred to a larger bench its 2016 ruling in the Nabam Rebia case, where it was held that the Speaker of a House can¡¯t decide a disqualification petition filed under the anti-defection law while a notice under Article 179(c) for the Speaker¡¯s removal is pending.

In February this year, the court had said that a decision on whether its Nabam Rebia judgment should be referred to a larger Bench, as requested by the Uddhav Thackeray faction of the Shiv Sena, could not be considered in the abstract ¡ª and would have to be determined together with the merits of the Sena dispute case.

¡°Whether it (judgment in Nabam Rebia vs Deputy Speaker) should be referred to seven judges cannot be considered in the abstract, isolated or divorced from the facts of the case. Whether the¡­principle which has been formulated in Nabam Rebia has an impact upon the facts of the present case needs deliberation.

¡°In the above backdrop, the issue whether reference of the decision in Nabam Rebia to a larger bench is warranted will be determined together with the merits of the case,¡± the Bench led by Chief Justice of India D Y Chandrachud and also comprising Justices M R Shah, Krishna Murari, Hima Kohli, and P S Narasimha had said.

The Thackeray faction¡¯s prayer had risen in the context of petitions resulting from the Maharashtra political fallout.

India Today

What Was The Nabam Rebia Case?

In Nabam Rebia & Bamang Felix v. 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¡±.

The Shinde group had cited the Nabam Rebia ruling when the crisis unfolded in June 2022 to contend that the Deputy Speaker cannot proceed under the Tenth Schedule against the dissident Sena MLAs as a notice seeking his removal was pending.

Contesting this, the 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.

Supreme Court Verdict

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.

¡°¡­This is not about today. This is about tomorrow,¡± he said. ¡°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¡­¡±

Singhvi argued that the court must not distinguish the Rebia decision from the Sena matter. ¡°Distinguishing Nabam Rebia will generate [more] future litigation than solve any problem. In a binary sense, either this Court agrees or refers it,¡± he submitted.

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 disqualification.

However, Thackeray resigned even before the floor test, as he realised that he did not have the requisite numbers, and there was thus no prejudice to the Speaker to exercise his power of disqualification, Jethmalani submitted. The CJI had remarked during the hearing that the matter raises ¡°tough constitutional questions to answer on both counts¡±.