Supreme Court says Speaker should deal with disqualifications first, not courts

New Delhi: The Supreme Court on Tuesday disagreed with senior advocate Kapil Sibal’s submission that the constitutional courts of the concerned jurisdiction should be the first forum to decide disqualification petitions against legislators under the anti-defection law. Should be made.

The argument was made when Sibal, appearing for the Uddhav Thackeray-led Shiv Sena whose government was toppled by a rebellion last June, Chief Justice DY Chandrachud, and Justices MR Shah, Krishna Murari, Hema Kohli and PS Narasimha’s bench said, “Why should the courts go into an area which is exclusively reserved for the Speaker? Courts can always be approached to challenge the Speaker’s decisions in disqualification petitions.”

The focus of the three senior advocates – Sibal, A M Singhvi and Devdutt Kamat – was on review of the SC’s July 2016 judgment in the Nabam Rebia case, which had ruled that a Speaker cannot decide pending disqualification petitions against legislators. If during the pendency of the notice in respect of the notice of removal thereof. With this decision, SC revoked President’s rule in Arunachal Pradesh for the first time in history and reinstated Congress government and later formed another government by rebel MLAs of Congress with the help of BJP.

Sibal sought a 7-J bench probe into the judgment in the Rebia verdict, saying it was being misused by defector legislators to file expulsion notices against the Speaker to prevent proceedings against them under the 10th Schedule . Sibal said, “The 10th schedule was implemented to protect political morality by preventing defection. But now it is being reversed. The provisions of the anti-defection law are now being used by all governments to promote defection.” No matter what party they belong to.” Said.

He pointed out that a 5-J bench of the Supreme Court in the Kihoto Holohan judgment in 1992 had held that constitutional courts should not interfere in the disqualification proceedings pending before the Speaker, but in the Rebia case, another 5-J bench had held that the Speaker intervened in the proceedings before , Sibal said this required the context of the issue – whether the Speaker can be restrained from deciding disqualification petitions against defector MLAs, pending removal notices against them.

Sibal, arguing on behalf of the Shiv Sena’s Thackeray faction, said that Rebia was used in Maharashtra to prevent the Speaker from deciding on disqualification petitions against rebel Sena legislators, who then sought to topple the elected MVA government. had entered into an unholy alliance with rival parties. Pre-poll alliance with BJP to seek support of rivals Congress and NCP to form CM Thackeray-led government. Rebel Sena leader Eknath Shinde was sworn in as chief minister on June 30 last year, three days before the Supreme Court protected rebel MLAs from disqualification till July 12. Members of Shiv Sena’s Thackeray faction have challenged the Speaker’s decision, the Governor’s decision to invite Shinde to form the government and several related decisions.

Interestingly, soon after it was pronounced on July 13, 2016 to restore the Congress government in Arunachal Pradesh, Rebia’s much-publicised judgment was hailed as a historic and salutary judgment by none other than Sibal, who at that time There was a Rajya Sabha MP from the Congress who argued the case. He had said, “This is historic. This has never happened in our history. Only the judiciary can protect the values of the Constitution and I salute the judiciary for this decision.” Congress leader Rahul Gandhi had said, ‘Thank you Supreme Court for making the Prime Minister understand what democracy is.’

Sibal, who is now elected to the Rajya Sabha from Uttar Pradesh with the help of the Samajwadi Party, said Rebia wrongfully prevented the speaker from deciding the disqualification petitions pending the removal notice. He said that the Speaker is a constitutional authority as well as a tribunal to decide disqualification petitions against legislators.

“The Constitution does not envisage any gap in the Legislative Assembly in the discharge of its functions during the pendency of the notice for removal. If so, how can the Supreme Court prevent it from deciding the disqualification petitions under the provisions of the Tribunal Constitution,” he asked.

Reading out the relevant portions of the Rebia judgment, the Supreme Court noted that in 2016 the court had felt that if the Speaker was not restrained from deciding disqualification petitions against MLAs during the pendency of removal notices against them, he Can get majority by disqualifying MLAs. Support for the motion to remove him before being voted on. On the other hand, the arguments of Shinde faction of Shiv Sena will start from Wednesday.