Sena vs Sena: ‘Nabam Rebia based on contradictory reasoning’ says Supreme Court, refers ruling to 7 judge bench

The Supreme Court of India has referred its Nabam Rebia (2016) ruling to a larger bench. In the Nabam Rebia case, the court held that a Speaker cannot decide on disqualification filed under anti-defection law when a motion of removal against him is pending. The Supreme Court’s Constitution Bench was hearing the case related to Maharashtra’s constitutional crisis concerning the split between current Maharashtra Chief Minister Eknath Shinde’s Shiv Sena faction and former Maharashtra Chief Minister Uddhav Thackeray’s Shiv Sena (UBT).

The Supreme Court held, “However, the status quo ante cannot be restored because Mr. Thackeray did not face the floor test and tendered his resignation.” Furthermore, the court added, “The Governor was justified in inviting Mr. Shinde to form the government.”

The petitioner had sought to restore the status quo ante and rule that the government with Uddhav Thackeray as its Chief Minister, placing reliance on the Nabam Rebia case. The petitioner’s counsel argued, “This Court must direct status quo ante to give effect to the object behind the introduction of the Tenth Schedule, which is to curb the evil of political defections.”

Furthermore, the Supreme Court said that the proposition of law propounded in the Nabam Rebia case is not applicable to the present case. The court said, “Although the decision in Nabam Rebia (supra) is not applicable to the factual scenario before us, we are alive to the competing considerations which animated this Court in its order dated 23 August 2022 by which the decision in Nabam Rebia (supra) was referred to a Constitution Bench.”

The Supreme Court also noted that in the Nabam Rebia case, the court formed a prima facie opinion that the proposition of law laid down in Nabam Rebia case was based on “contradictory reasoning.” Thereafter, the court referred the Nabam Rebia ruling to a larger bench “because a substantial question of law remains to be settled.”

Furthermore, the court noted that the Nabam Rebia judgement is in conflict with Kihoto Hollohan ruling wherein it was held that “there is no reason to doubt the independence and impartiality of the Speaker when adjudicating on proceedings under the Tenth Schedule.”

The Supreme Court noted that two important aspects were not discussed in the Nabam Rebia case, including (i) whether the temporary disablement of a Speaker’s functions under the Tenth Schedule is prone to misuse by the MLAs who anticipate or are facing disqualification petitions; and (ii) whether a “constitutional hiatus” in the operation of the Tenth Schedule ensues because of the temporary disablement of the Speaker.

It is pertinent to note that the Eknath Shinde’s Shiv Sena group cited the Nabam Rebia ruling, when the crisis unfolded in June 2022, to contend that the Deputy Speaker cannot proceed under the Deputy Speaker cannot proceed against the rebel MLAs as the notice seeking his removal was pending. However, the Uddhav Thackeray faction argued that the rebel MLAs are stalling disqualification proceedings against them by seeking the Speaker’s removal.

The Nabam Rebia was mentioned in the matter again in February, the Eknath Shinde’s Shiv Sena argued that the matter has become academic, contending that there was no reason to refer the Nabam Rebia case to a larger bench. However, Uddhav Thackeray’s counsels argued that the ruling has huge ramifications for the country’s democratic future and thus is not academic, urging the Constitution Bench to refer the ruling to a larger 7-judge bench.

Nabam Rebia Case

In November 2015, Arunachal Pradesh experienced a constitutional crisis when 21 Congress MLAs rebelled against the government and demanded the removal of Chief Minister Nabam Tuki and Speaker Nabam Rebia, with the backing of opposition leaders.

Nabam Rebia disqualified 14 rebel MLAs on December 15, 2015, which the Deputy Speaker quashed later, on the same day. Meanwhile, the Governor advanced the assembly session on December 16, 2015, which the Tuki government opposed and locked the session.

Thereafter, the MLAs met in a community hall wherein Speaker Rebia was voted out and the Chief Minister was removed the next day. Nabam Rebia challenged the dismissal before the Gauhati High Court. On January 5, 2016, the Gauhati High Court stayed the disqualification of 14 rebel MLAs and dismissed the Speaker’s plea.

The matter was later referred to the Constitutional Bench of the Supreme Court, wherein the court held that a Speaker cannot decide on disqualification filed under anti-defection law when a motion of removal against him is pending. Furthermore, the Supreme Court nullified the President’s Rule in Arunachal Pradesh and restored the Congress Government with Nabam Tuki as the Chief Minister, however, he was later voted out through a floor test.