Maha crisis: SC refuses immediate decision on question of reference to larger bench

New Delhi:- The Supreme Court on Friday declined to make an immediate reference to a seven-judge bench to reconsider its 2016 Nabam Rebia judgment, which restricted the power of the Speaker to examine disqualification petitions against MLAs if a resolution for his removal is pending.

A five-judge bench headed by Chief Justice of India said the issue of reference will be decided only with the merits of the case, and fixed the matter for hearing on merits on February 21.

The bench observed that the question of reference to 2016 Nabam Rebia judgement to a larger bench can’t be decided in “abstract manner, isolated and divorced from facts of the case”. Detailed order will be uploaded later in the day.

The apex court pronounced its order on a plea made by Uddhav Thackeray’s Shiv Sena faction to refer the five-judge bench decision in Nabam Rebia case of 2016 to a seven-judge bench. During the hearing on Thursday, the bench — also comprising Justices M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha — wondered if it could venture into the correctness of its previous judgment when the factual circumstances in the political crisis in Maharashtra do not arise.

The apex court observed that the Constitution lays down the principle with regards to overall disqualifications and on the Tenth schedule, the Constitution has introduced additional disqualification.

The Thackeray faction argued that Nabam Rebia judgment, which restricted the power of the speaker to examine disqualification petition if a resolution of his own removal was pending, was prone to misuse for the benefit of defecting MLAs.

The bench noted that it has seen how vexed the Nabam Rebia can be? The judgment has laid down a principle and before the court decides to enter upon this to review it, “we have to be sure it strictly arises in this case.”

The bench further added that it is difficult to lay down a rule prescribing whether the speaker should decide within this time, discretion is given but whatever decision the speaker takes, it will relate back. Senior advocate Kapil Sibal, representing the Uddhav Thackeray faction, submitted that in the meantime, a legally elected government will be toppled. He further added, “take the present caseā€¦ Eknath Shinde, he is the CM now. How is it going to relate back?”

The bench had noted that correctness of Nabam Rebia judgment will arise if the speaker stood injuncted by this court from exercising power and the speaker created a problem for himself, may be out of political exigency. It further added that the speaker only gave two days’ notice and the apex court extended the time for reply till July 12, 2022.