No Disqualification Till 11 July, Sena Rebels v Deputy Speaker to Continue in SC

A vacation bench of Justices Surya Kant and JB Pardiwala is likely to hear the minister’s plea on Monday, 27 June.

Eknath Shinde.

(Photo: The Quint)

The Supreme Court on Monday, 27 June, effectively ordered a maintenance of status quo in the Maharashtra political crisis till 11 July, when it will resume hearing the pleas by Eknath Shinde and 15 other rebel Shiv Sena MLAs regarding the disqualification proceedings against them.

In the meantime, the Deputy Speaker of the Maharashtra Assembly, Narhari Zirwal, will file his reply to the rebels' claim that they sent him a notice for his removal under Article 179 of the Constitution. The rebels will be given an opportunity to respond to his assertion that he had rejected the communication sent to him because he couldn't ascertain its veracity.

The rebels have also been given till 11 July to respond to the disqualification notices sent to them, while the Deputy Speaker and Uddhav Thackeray faction were told they can approach the apex court if any attempt to conduct a floor test to change the status of the Assembly was made before then.

On Sunday, Maharashtra Shiv Sena MLA and rebel leader Eknath Shinde, along with the 15 other rebel legislators who had been sent disqualification notices by Deputy Speaker Narhari Zirwal, had moved the apex court, seeking a stay against notices, which they called “illegal and unconstitutional.”

A vacation bench of Justice Surya Kant and Justice JB Pardiwala heard the pleas by the rebels on Monday, who were represented by senior advocate Neeraj Kishan Kaul.

The key argument raised in the hearing on Monday by the rebels was that Deputy Speaker Zirwal must not be allowed to disqualify the rebels till there had first been a vote in the Maharashtra Assembly on the motion brought by the rebels to remove Zirwal from his post.

Shinde and a sizeable number of MLAs rebelled against the leadership of Chief Minister Uddhav Thackeray on 21 June and are currently in Guwahati, Assam.

The Shinde faction’s main demand is that the Sena withdraws from the Maha Vikas Aghadi alliance, which also comprises the Congress and NCP.

'Deputy Speaker Can't Look at Disqualification Plea When Removal Sought': Rebels

According to the petition filed by Shinde in the apex court, 34 Shiv Sena MLAs along with several independent MLAs issued notice to the Deputy Speaker on 21 June that they were seeking his removal, under Rule 11 of the Maharashtra Assembly Rules read with Article 179 of the Constitution.

Article 179(c) of the Constitution says that a Speaker or Deputy Speaker "may be removed from his office by a resolution of the Assembly passed by a majority of all the then members of the Assembly". A 14-day notice of the intention to move such a motion has to be given to the Speaker/Deputy Speaker.

Kaul argued that in the Supreme Court's Nabam Rebia judgment from 2016, a Constitution Bench of the court had said that the usage of the words "all the then members of the Assembly" in Article 179(c) means that once a motion to remove the Speaker/Deputy Speaker, they are prohibited from going ahead with disqualification proceedings till that motion is decided.

This is because if an MLA is disqualified in the intervening period, they will not be able to vote on the motion to remove the Speaker/Deputy Speaker, which would be unfair, the court had explained there:

"When the position of a Speaker is under challenge, through a notice of resolution for his removal, it would “seem” just and appropriate, that the Speaker first demonstrates his right to continue as such, by winning support of the majority in the State Legislature. The action of the Speaker in continuing, with one or more disqualification petitions under the Tenth Schedule, whilst a notice of resolution for his own removal, from the office of Speaker is pending, would “appear” to be unfair."

In the instant case, the notice of the motion to remove Zirwal was given on 21 June, and the disqualification notices were sent subsequently, on 25 June.

As a result, Kaul argued, Deputy Speaker Zirwal was prohibited from considering the disqualification notices against Shinde's rebels at this time, and can only do so once the Assembly votes on whether to remove him from his post.

In addition, the rebels also argued that the disqualification notices sent to them violated the Assembly's Rules, according to which they should be given at least seven days to respond – the notices only gave them 48 hours instead.

Kaul pointed out that while the Supreme Court normally says it won't interfere with the decision-making of a Speaker before a final decision is made, it can do so when there is 'extreme impropriety', such as undue haste.

The lawyer for the rebels also informed the court that they and their families had faced threats to their lives and property, as a result of which the court sought assurances from the state of Maharashtra that they would be safe.

'Nabam Rebia Judgment Doesn't Apply if There are Doubts Over Notice for Removal': Deputy Speaker

Senior advocate Abhishek Manu Singhvi, appearing for the Shiv Sena and its chief whip, argued that the court should not take up the matter till a final decision on the disqualification notices was made by the Deputy Speaker, in accordance with Article 212 of the Constitution and the Supreme Court's landmark decision in the Kihoto Hollohan case from 1992.

"Right or wrong, the Speaker has to be allowed to make their decision before there can be an interdict," Singhvi contended.

The bench acknowledged that this is the general position, but noted that the Nabam Rebia judgment dealt with a specific situation where a notice for removal of the Speaker/Deputy Speaker had been submitted, and expressly prohibited the Speaker/Deputy Speaker from carrying on disqualification proceedings during this time.

Singhvi then pointed out that if Nabam Rebia were interpreted so lightly, it would "drive a coach and four" through the anti-defection law.

This is because, he suggested, any legislator anticipating disqualification proceedings against them would merely have to shoot off a one-line message to the Speaker saying they didn't have confidence in them any more, and this would hamstring the Speaker from applying the anti-defection law.

Senior advocate Rajeev Dhavan, appearing for Deputy Speaker Zirwal, clarified that the Deputy Speaker had received a communication about removal, but this had not been sent to his legislative office, and had instead been sent on an email from an advocate, with the alleged signatures of the MLAs attached.

Dhavan argued that this was not the proper form in which such a notice for removal could be sent, and the Deputy Speaker had replied to the email saying as much.

According to him, the Deputy Speaker had argued that he could not be certain about the authenticity of the signatures or the message, and so would not be treating it as notice for their removal – something which was within the Deputy Speaker's powers.

The judges asked Dhavan to place this contention on record in an affidavit, which he agreed to do.

It was also pointed out that even assuming the letter sent by email could be considered genuine, it was a letter by Shinde on the Shiv Sena letterhead as leader of the Shiv Sena legislature party – a position from which he had been removed previously (though this decision to remove him has also been challenged in the court).

Dhavan and Singhvi tried to argue that the apex court could not direct the Deputy Speaker to keep the disqualification proceedings in abeyance while there was a dispute over whether there had been a proper communication of the request for Zirwal's removal, but the court disagreed, on the basis that it needed to balance the interests of the parties.

What Else Does Shinde's Plea Say?

In his plea, Shinde said that he is constrained to invoke the jurisdiction of the court under Article 32 of the Constitution, challenging the "arbitrary and illegal" exercise of provisions of Members of Maharashtra Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986 by the deputy speaker, which is in violation of Article 14 and 19(1)(g) of the Constitution.

"...the illegal and unconstitutional action of the Deputy Speaker insofar as recognising Ajay Choudhury as the leader of the Shiv Sena Legislature Party (SSLP) despite the said request being admittedly made by a minority faction of the SSLP. Further, the said Respondent No. 1 (Deputy Speaker), even after belonging to the minority faction of the SSLP, has also filed a Petition under Rule 6 of MLA Defection Rules seeking disqualification of the Petitioner..."

Plea by Eknath Shinde

Shinde’s petition contended that since Nana Patole’s resignation from the Speaker’s office in February 2021, the seat of the Speaker is vacant and there is no authority who can adjudicate upon the disqualification petition under which he was issued a notice.

Shinde, who is an MLA from Kopri-Pachpakhadi constituency of Thane, has challenged the ex-facie illegal disqualification proceedings initiated against him at the instance of Shiv Sena's chief whip, Sunil Prabhu, and said he had no authority to issue any whip having been removed as the Chief Whip of the Shiv Sena Legislature Party and the consequent issuance of summons issued by the deputy speaker without verifying the matter.

The petition has sought directions to the deputy speaker to not take any action in the disqualification petition under Rule 6 of MLA Defection Rules pending before the speaker of Maharashtra State Legislative Assembly and not take any action on the same until the resolution for removal of deputy speaker is decided.

"Issue a writ of certiorari or any other appropriate writ, order or direction hold and declare that the Letter/order dated June 21, 2022, passed by the Respondent No. 1 accepting the appointment of Respondent No. 4 as Leader of Shiv Sena Legislature Party is illegal and unconstitutional and be pleased to quash and set aside the same," the plea said.

The Summons

The Maharashtra legislature secretariat on Saturday had issued "summons" to 16 rebel Shiv Sena MLAs, including Shinde, seeking written replies by the evening of June 27 to the complaints seeking their disqualification.

Signed by Rajendra Bhagwat, principal secretary of the Maharashtra Vidhan Bhavan, the summons were sent to all 16 MLAs named by Shiv Sena's chief whip, Sunil Prabhu, in a letter.

Prabhu had earlier asked the rebel MLAs of the Shinde faction, who are camping in Guwahati, to attend a party meeting on Wednesday but none of them turned up.

Subsequently, the Sena submitted two letters to the legislature secretariat, seeking disqualification of 16 MLAs including Shinde.

The summons issued by Bhagwat on Saturday said that Prabhu had submitted a letter to deputy speaker of the Assembly Narhari Zirwal seeking their disqualification under the Members of Maharashtra Legislative Assembly (Disqualification on ground of Defection) Rules, 1986.

"In your defence of the summons, you need to submit your written response before 5.30 pm on June 27 (Monday) supported by all the necessary documents. If the written response to the summons is not submitted in a given period, it would be considered as you have no say over it. The office will initiate necessary action based on the complaint filed by Prabhu against you," the letter said.

The Shinde group, which claims to have the support of more than two-thirds of Sena MLAs, has announced that Prabhu has been replaced as party whip by Bharat Gogawale.

(With inputs from PTI)