NEW DELHI: The Supreme Court on Wednesday stated that it dealt with a Hobsons option in deciding to either keep undamaged or amend/erase its 2016 Nabam Rebia judgment, which had restrained Speakers dealing with elimination motion from choosing disqualification petitions versus MLAs, and confessed that the repercussions of both judicial actions are fraught with danger for democratic polity.Acknowledging the weight in the competing submissions identifying the fallout of eliminating or preserving the five-judge benchs 2016 judgment, a bench of Chief Justice DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha yielded: It is tough constitutional question to address on both counts .
If the Rebia judgment is right, the Speaker dealing with removal motion gets limited from handling disqualification petitions against MLAs under the anti-defection law, the effect is complimentary flow of human capital from one party to the other.
On the other hand, if the Speaker, facing removal movement, is not restrained, he could disqualify dissenting MLAs to tailor the assembly structure that would allow a leader to continue in a constitutional post even without enjoying the majority assistance of his own celebration, the bench said.It asked both sides, Can we as a 5 judge bench effort to fill recognizable gaps in the Nabam Rebia judgment? Or, even for that purpose do we have to refer it to a seven-judge bench? The arguments on plea for referral to a seven-judge bench is likely to conclude on Thursday.Uddhav Thackeray-led Sena faction through counsel Kapil Sibal, A M Singhvi and Devadatt Kamat favoured review of Rebia judgment on the ground that the Constitution does not imagine any fetter on the functional autonomy of the Speaker.
However as the 2016 judgment hindered the Speaker from choosing disqualification petitions, pending notification for movement for his elimination, the rebel Sena MLAs changed loyalty, cocking a snook at anti-defection law and brought down the Maha Vikas Aghadi (MVA) federal government in Maharashtra in June last year, they said.On the other hand, the Eknath Shinde-led faction of the Shiv Sena legislative celebration through counsel Harish Salve and N K Kaul argued that Rebia needed no reconsideration as, missing the restraint on Speaker dealing with removal movement, he could change the composition in the assembly by disqualifying MLAs to enable a leader without majority assistance to continue as CM.
In this case, there was no defection.
We are the Shiv Sena.
We only desired a modification of leadership and it is an internal matter of the party, the Shinde-faction said.Salve said, Anti-defection law can not be used as a tool to suppress intra-party dissent in a democracy.
As lots of as 40 of the 55 Sena MLAs lost faith in their leader who joined hands with competing celebrations to form government.
If Thackeray had not resigned and dealt with the trust vote, then the Speaker might have recognized who all had voted in defiance of the whip and started disqualification proceedings.
He resigned prior to the June 30 trust vote.
How could anti-defection laws be applicable to expression of dissent within the party? Kaul stated a hopeless minority of Sena legislature celebration led by Thackeray, after losing power, had counted on the really same Nabam Rebia judgment, which they are now questioning, to move SC and seek to limit the Speaker from choosing disqualification petitions against his supporting MLAs.
One can not state when it benefits me, the judgment is right, but when it does not, it is wrong, he said.
The bench captured the point and stated, It is a political benefit to depend on a judgment as and when it matches a specific scenario.
Solicitor basic Tushar Mehta stated Rebia judgment required no reconsideration as the Speaker can not be the judge of his own trigger by being enabled to customize the electorate in the assembly ahead of voting on a movement for his removal.