By – GAUTAM KUMAR (CENTRAL UNIVERSITY OF SOUTH BIHAR,GAYA)
- ABSTRACT
In the case of Subhash Desai vs Principal Secretary, Governor of Maharashtra & Ors[1], the Supreme Court considered a request for a reference to a larger Bench regarding the decision in Nabam Rebia and Bamang Felix vs Deputy Speaker, Arunachal Pradesh Legislative Assembly. The issue at hand was whether a Speaker could adjudicate on disqualification petitions under the Tenth Schedule while facing a notice of removal. Different opinions were presented by the judges involved, with Justices Khehar and Misra holding that the Speaker should refrain from considering such petitions when facing removal intent, while Justice Lokur had a differing view.
The Court emphasized that the decision on whether to refer the case to a larger Bench should be made considering the specific facts of the case and its impact on the present situation. The Court decided to determine the need for a reference alongside the case’s merits and scheduled a further hearing for 21st February 2023. The case involved multiple petitions, stay applications, and a significant number of advocates representing the parties. Ultimately, the Court’s decision on the reference and the case’s merits would be crucial in resolving the legal complexities surrounding the Speaker’s role in disqualification petitions under the Tenth Schedule.
Keywords): tenth schedule, constitution, Supreme Court, disqualification, speaker
- CASE DETAILS
| Judgement Cause Title | Subhash Desai v. Governor of Maharashtra |
| Case Number | Writ Petition (Civil) No 493 of 2022 |
| Judgement Date | 2023.02.17 |
| Court | THE SUPREME COURT OF INDIA |
| Quorum | Hon’ble Dr Justice Dhananjaya Y Chandrachud Hon’ble Mr Justice M R Shah Hon’ble Mr Justice Krishna Murari Hon’ble Ms Justice Hima Kohli Hon’ble Mr Justice Pamidighantam Sri Narasimha. |
| Author | Hon’ble Dr Justice Dhananjaya Y Chandrachud Hon’ble Mr Justice M R Shah Hon’ble Mr Justice Krishna Murari Hon’ble Ms Justice Hima Kohli Hon’ble Mr Justice Pamidighantam Sri Narasimha. |
| Citation | 2023 SCC Online SC 607 |
| Legal Provisions Involved | Constitution of India- Art 179(c ), Art 212, Art 226, Art 32, Art 145(3) Constitution of India- tenth schedule: Anti defection law Doctrine of precedent Rule of law Function and powers of Governor |
- INTRODUCTION AND BACKGROUND OF JUDGEMENT
The main issue in this case revolved around the political turmoil and power struggle within the State of Maharashtra, particularly concerning the Shiv Sena party. The case involved disputes over the leadership of the Shiv Sena Legislative Party (SSLP), the appointment of the Group Leader and Chief Whip, and the validity of decisions made by different factions within the party.
The Tenth Schedule of the Indian Constitution[2], commonly known as the Anti-Defection Law, was added by the 52nd Amendment Act of 1985 to address the issue of political defections by Members of Parliament and Members of State Legislatures. The primary objective of the Tenth Schedule is to curb the practice of legislators switching parties for personal gain or political opportunism, thereby ensuring stability and integrity in the political system.
Key provisions and features of the Tenth Schedule include:
1. Definition of Defection: The Tenth Schedule defines defection as voluntarily giving up the membership of a political party or disobeying the party whip on a vote. It includes joining another party or forming a new party after leaving the original party.
2. Disqualification: If a legislator is found to have defected as per the provisions of the Tenth Schedule, they are liable to be disqualified from their membership in the House. This disqualification may be enforced by the Speaker of the House based on a petition filed by the party concerned.
3. Exceptions: The Tenth Schedule provides certain exceptions to disqualification, such as when a split occurs within a party and one group constitutes at least one-third of the members of the legislative party.
4. Role of the Speaker: The Speaker of the House plays a crucial role in deciding on disqualification petitions under the Tenth Schedule. The Speaker’s decision in such matters is subject to judicial review.
5. Timeframe for Disqualification: The Tenth Schedule specifies a timeframe within which the Speaker must decide on disqualification petitions, ensuring a timely resolution of defection cases.
Overall, the Tenth Schedule of the Indian Constitution aims to promote party discipline, prevent unethical political practices, and uphold the democratic principles of accountability and transparency in the functioning of legislative bodies. It serves as a mechanism to deter opportunistic defections and maintain the integrity of the political system in India.
- FACTS OF THE CASE
The judgment pertains to a Writ Petition (Civil) No. 493 of 2022 filed by Subhash Desai against the Principal Secretary and Governor of Maharashtra and others. During the hearing, a preliminary submission was made regarding the decision in Nabam Rebia and Bamang Felix Vs Deputy Speaker, Arunachal Pradesh Legislative Assembly[3], which was argued to require reconsideration by a Bench of several Judges.
Senior Counsels like Mr. Kapil Sibal, Dr. Abhishek Manu Singhvi, and Mr. Devadatt Kamat sought a reference to a larger Bench, which was opposed by other learned Senior Counsels representing the other side. The issue revolved around whether a reference should be made to a Bench of seven Judges to reconsider the decision in Nabam Rebia case.
In the Nabam Rebia case, three judgments were delivered by a Constitution Bench, with differing opinions on whether the Speaker should abstain from considering a petition for disqualification under the Tenth Schedule of the Constitution when a notice indicating an intent to remove him has been moved.
Justice J S Khehar and Justice Dipak Misra held that the Speaker should refrain from adjudicating on disqualification petitions under the Tenth Schedule when a notice of resolution for his own removal from the Office of the Speaker is pending. On the other hand, Justice Madan B Lokur had a different view on the matter.
The judgment highlighted the need to consider the impact of the principle formulated in the Nabam Rebia case on the specific facts of the present case. The issue of whether a reference to a Bench of seven Judges should be made was to be determined along with the merits of the case.
As a result, the batch of cases was scheduled for a hearing on merits on Tuesday, 21 February 2023, at 10.30 am.
LEGAL ISSUES RAISED
- Whether it is constitutionally impermissible for a speaker to adjudicate upon disqualification petitions under the tenth schedule when a notice of resolution for his own removal from the office of the speaker is pending.
- The interpretation of Article 179(c[4]) and its relevance to speaker`s action in the context of tenth schedule of the constitution.
- The necessity of determining whether a reference to a larger bench is warranted based on the merits of case and the impact of the Nabam Rebia decision on the present circumstances.
PETITIONER ARGUMENTS
- “The counsels for Petitioner submitted that the decision in the case of Nabam Rebai case, Arunachal Pradesh legislative assembly required reconsideration by a bench of seeral judges”. The petitioner, represented by senior counsels like Mr. Kapil Sibal, Dr. Abhishek Manu Singhvi and Mr. Devdatta kamat, sought a reference to a larger bench to re-examine the principles established in Nabam Rebia case.
- “The petitioner contention was that the speaker should not be allowed to adjudicate upon disqualification petition under the tenth schedule of constitution when facing a notice of resolution for his own removal from the office of the speaker”. This argument was based on the interpretation of the constitution provisions and the principles of democracy, rule of law, and constitutional adjudication.
- RESPONDENT’S ARGUMENTS
- The counsels for Respondent, Mr. Harish salve, Mr. Mahesh jethmalani, Mr. Neeraj kishan kaul, Mr. Maninder Singh, and Mr. Siddharth Bhatnagar, along with other learned Senior Counsels, opposed the submission made by Mr. Kapil Sibal, Dr. Abhishek Manu Singhvi, and Mr. Devadatt Kamat for seeking a reference to a larger Bench.
- Mr. Tushar Mehta, the learned Solicitor General, appeared on behalf of the Governor of the State of Maharashtra.
- The respondent argued against the need for a reference to a Bench of seven Judges regarding the decision in Nabam Rebia and Bamang Felix vs Deputy Speaker, Arunachal Pradesh Legislative Assembly [(2016) 8 SCC 1].
- The respondents emphasized that the issue of whether a reference to a larger Bench is required should be considered in conjunction with the merits of the case.
- The respondents did not support the idea of making a reference to a larger Bench in isolation from the specific facts and circumstances of the case.
- The respondent highlighted the need for a thorough deliberation on whether the principle established in the Nabam Rebia case impacts the factual position in the present case.
- Mr. Tushar Mehta, along with others counsels representing the respondents, participated in the arguments on the issue of whether a reference to a larger Bench should be made, emphasizing the importance of considering the merits of the case simultaneously.
- The respondents` stance was that the decision on whether to refer the case to a larger Bench should be made in conjunction with a detailed examination of the facts and legal principles involved in the present case.
RELATED LEGAL PROVISIONS
In the case of Subhash Desai vs Principal Secretary, Governor of Maharashtra and Ors[5], the following legal provisions were referred to and discussed:
1. Tenth Schedule to the Constitution: The Tenth Schedule deals with anti-defection provisions in India. It lays down the disqualification criteria for Members of Parliament and State Legislatures on the grounds of defection.[6]
2. Article 179(c) of the Constitution: This article pertains to the removal of the Speaker of the Legislative Assembly. It outlines the procedure for moving a resolution to remove the Speaker from office.[7]
3. Constitutional adjudication: The term refers to the process of interpreting and applying the Constitution by the judiciary to resolve legal disputes and uphold constitutional principles.
4. Rule of Law: The principle that all individuals and institutions are subject to and accountable under the law, ensuring fairness, equality, and justice in society.
5. Founding Fathers: Refers to the leaders who played a significant role in the establishment of a nation’s constitution. In this context, it likely refers to the framers of the Indian Constitution.
6. Constitutional values: The fundamental principles and ideals enshrined in the Constitution, such as democracy, rule of law, equality, and justice.
7. Anathema: A term used to describe something that is detested or loathed, often in the context of being contrary to established norms or principles.
- JUDGEMENT
In the case of Subhash Desai vs Principal Secretary, Governor of Maharashtra, the Supreme Court of India heard arguments regarding the reconsideration of the decision in the Nabam Rebia case by a larger Bench of Judges. The petitioner, represented by Senior Counsels, contended that the Speaker should not adjudicate on disqualification petitions under the Tenth Schedule of the Constitution when facing a notice of resolution for his removal. The judgment highlighted the differing views of the Justices in the Nabam Rebia case on this issue. The Court emphasized the need to assess the impact of the principles established in Nabam Rebia and bamang felix v. deputy speaker Arunachal Pradesh legislative assembly and others on the specific facts of the present case before deciding on a reference to a larger Bench. The Court scheduled the batch of cases for a hearing on merits on a specified date to thoroughly examine the legal issues involved and determine the necessity of a reference. The judgment underscored the importance of a contextual analysis in deciding on the appropriateness of a larger Bench in light of the principles set forth in the Nabam Rebia case.
- RATIO DECIDENDI
The ratio decidendi of the judgment in Subhash Desai vs Principal Secretary, Governor of Maharashtra is that the decision on whether a reference to a larger Bench of seven Judges should be made to reconsider the decision in the Nabam Rebia case is contingent upon a thorough examination of the impact of the principles established in Nabam Rebia on the specific circumstances of the present case. The judgment underscores the importance of not considering the issue of reference in isolation but rather in conjunction with the merits of the case at hand. It emphasizes the need to deliberate on how the principles articulated in Nabam Rebia may affect the factual position in the present case before deciding on the necessity of a larger Bench. The decision to schedule the batch of cases for a hearing on merits on a specified date reflects the court’s approach to ensuring a comprehensive assessment of the legal issues involved. Ultimately, the ratio decidendi highlights the requirement for a contextual and case-specific analysis to determine the appropriateness of a reference to a larger Bench in light of the principles established in the Nabam Rebia case.
- OBITER DICTA
The obiter dicta of this judgment pertains to the consideration of whether a reference of the decision in Nabam Rebia and Bamang Felix vs Deputy Speaker, Arunachal Pradesh Legislative Assembly [(2016) 8 SCC 1][8] to a larger Bench is necessary. It emphasizes that this determination will be made in conjunction with the examination of the case’s merits. The court highlighted the importance of not isolating the issue of reference from the specific facts of the case at hand. It underscores the need for a comprehensive analysis to ascertain the impact of the principle established in the Nabam Rebia case on the current scenario. The judgment sets a date for the batch of cases to be heard on their merits, indicating that the decision on the reference will be made in conjunction with a thorough evaluation of the case itself.
- CONCLUSION & COMMENTS
The conclusion of the judgment is that the issue of whether a reference of the decision in Nabam Rebia and Bamang Felix vs Deputy Speaker, Arunachal Pradesh Legislative Assembly [(2016) 8 SCC 1][9] to a larger Bench is warranted, would be determined together with the merits of the case. Consequently, the batch of cases is set down for hearing on merits on 21 February 2023 at 10.30 am.
The words ruled by the judges are as follows:
“In terms of the signed order, the issue whether a reference of the decision in Nabam Rebia and Bamang Felix vs Deputy Speaker, Arunachal Pradesh Legislative Assembly [(2016) 8 SCC 1] to a larger Bench is warranted, would be determined together with the merits of the case.”
This ruling signifies that the court has acknowledged the request for reconsideration of the decision in Nabam Rebia and Bamang Felix vs Deputy Speaker, Arunachal Pradesh Legislative Assembly [(2016) 8 SCC 1] by a Bench of several judges. The decision in question involves the interpretation of the Tenth Schedule to the Constitution, specifically regarding the Speaker’s authority to adjudicate upon disqualification petitions while a notice of resolution for his own removal from the Office of the Speaker is pending.
The judgment indicates that there are differing opinions among the judges involved in the decision in Nabam Rebia and Bamang Felix vs Deputy Speaker, Arunachal Pradesh Legislative Assembly [(2016) 8 SCC 1]. Justices J S Khehar and Dipak Misra held that it would be constitutionally impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule while a notice of resolution for his own removal from the Office of the Speaker is pending. On the other hand, Justice Madan B Lokur expressed a different view, stating that the issue of the Speaker taking a decision under the Tenth Schedule of the Constitution does not arise in the appeals.
Given the conflicting opinions, the court has decided to consider the request for a reference to a larger Bench in conjunction with the merits of the case. This approach indicates a thorough and comprehensive consideration of the legal issues at hand, ensuring that the decision is well-informed and takes into account all relevant factors.
The decision to set the batch of cases for hearing on merits on 21 February 2023 at 10.30 am demonstrates the court’s commitment to addressing the matter in a timely manner while ensuring that all aspects of the case, including the request for a reference to a larger Bench, are given due consideration.
REFERENCES
- Important Cases Referred
“Nabam Rebia and Bamang Felix vs Deputy Speaker, Arunachal Pradesh Legislative Assembly” [(2016) 8 SCC 1]
- Important Statutes Referred
Tenth schedule of indian constitution: anti defection law
[1] “Subhash Desai vs Principal Secretary, Governor Of … on 11 May, 2023,”available at: https://indiankanoon.org/doc/12168609/ (last visited February 24, 2024).
[2] WL Staff, “Tenth Schedule – Constitution of India” WritingLaw, 2020available at: https://www.writinglaw.com/tenth-schedule-constitution-of-india/ (last visited February 22, 2024).
[3] Available at: https://www.casemine.com/judgement/in/5790b598e561097e45a4e6f1.
[4] “Article 179 in Constitution of India,”available at: https://indiankanoon.org/doc/139447/ (last visited February 21, 2024).
[5] “Subhash Desai vs Principal Secretary, Governor Of … on 11 May, 2023,”available at: https://indiankanoon.org/doc/12168609/ (last visited February 22, 2024).
[6] WL Staff, “Tenth Schedule – Constitution of India” WritingLaw, 2020available at: https://www.writinglaw.com/tenth-schedule-constitution-of-india/ (last visited February 24, 2024).
[7] “Article 179 in Constitution of India,”available at: https://indiankanoon.org/doc/139447/ (last visited February 24, 2024).
[8] nabam rebia bamang,available at: https://www.casemine.com/judgement/in/5790b598e561097e45a4e6f1.
[9] nabam rebia bamang,available at: https://www.casemine.com/judgement/in/5790b598e561097e45a4e6f1.