SC gives interim relief to Shiv Sena rebels, asks whether Deputy Speaker can decide on his own removal?
The rebel Shiv Sena MLAs, who were asked by Maharashtra Deputy Speaker Narhari Jirwal to respond by Monday evening on petitions seeking disqualification from the Assembly, got interim relief when the Supreme Court asked them to send them on July 12. The time is till 5.30 pm. their answers.
A vacation bench of Justices Surya Kant and JB Pardiwala issued notices on two petitions – one by rebel Shiv Sena leader Eknath Shinde and the other by 15 MLAs of his faction who were served disqualification notices – fixing July 11 as the next date of hearing. Went.
“Meanwhile, as an interim measure, the time for the petitioners or other similar MLAs to submit their written submissions by the Deputy Speaker till 5.30 pm today, July 12, 2022, is extended till 5.30 pm,” the bench said. instructed.
Taking note of the contention of the rebel MLAs that there is danger to their lives and property, the bench recorded the statement of Maharashtra’s standing counsel that “adequate steps have already been taken and the state government will ensure that there is no loss of life”. Are. Freedom and property of 39 MLAs or their family members”.
It directed that a counter-affidavit be filed by the respondents within five days and the legislators may file the counter-affidavit, if any, within the next three days.
It also sought counter-affidavits after the legislators and the deputy speaker contradicted each other on the notices given by the disgruntled legislators, seeking disqualification of the deputy speaker.
The Vice President argued that the notice was sent through an unregistered email and was not taken on record as its genuineness was in doubt. The bench wondered what steps have been taken to check its genuineness and directed that the developments be explained in an affidavit.
Opposing the prayer for interim orders, senior advocates AM Singhvi and Devdutt Kamat, appearing for the Deputy Speaker and other respondents, held that the disqualification proceedings by the Speaker/Deputy Speaker were proceedings of the House and courts cannot interfere.
But the bench referred to the Supreme Court’s decision which said that judicial review was not barred.
Senior advocate Neeraj Kishan Kaul, appearing for the rebel MLAs, cited the 2016 Constitution Bench decision in Nabam Rebia vs Deputy Speaker, Arunachal Pradesh Assembly to argue that the Speaker/Deputy Speaker of the Assembly cannot decide on the disqualification of the MLAs, While there is a motion pending for them or its removal.
It “explicitly states that the Speaker shall not consider the disqualification or disqualification of any member unless the issue of the removal of the Speaker or the Deputy Speaker is decided”. And this is because, as the SC says, that amongst everything else, many political considerations come into play in these matters and if during the period of 14 days which Article 179(c) provides – that you first notice issue and within 14 days after that, under the rules that notice is read in the Assembly and a motion is moved if during that period a Speaker whom he considers unfit as an unwelcome group of people and If it dilutes the strength, which is actually sought to be done in this case, it completely destroys the provisions of the Constitution, destroys the spirit of the Constitution”, Kaul said.
Pointing out that the rebel MLAs had given notices for removal of the deputy speaker on June 25, even before the disqualification notices were issued to them on June 25, Kaul asked, “When the Constitution Bench can proceed with the matter then the deputy How can the speaker proceed? When the Supreme Court says his own issue of removal is not decided, he cannot proceed with the disqualification?”.
When the bench asked why these questions could not be raised before the deputy speaker himself, Kaul said the Supreme Court says it cannot deal with it at all.
For a specific question of the bench about approaching the High Court under Article 226 of the Constitution, Kaul referred to the statements of Shiv Sena leaders like Sanjay Raut to the bench and said that the atmosphere in Mumbai to pursue their legal remedies is not favorable. There.
Stating that the Shinde camp with 39 MLAs was a Shiv Sena majority, Kaul said, “Today a legislature party minority… is actually destroying the entire state machinery. Our houses are being burnt, we have to be physically challenged.” A party spokesperson says 40 bodies will come from Gauhati, they will be killed like bulls and you wait and see what happens in the coming days, how they will be treated.
“At present the environment and environment in Bombay is not at all conducive for us to legitimately pursue our legal and constitutional rights as such an environment has been vitiated…”.
Singhvi, appearing for Shiv Sena Legislature Party leader Ajay Choudhary and Chief Whip Sunil Prabhu, said the Nabam Rebia’s decision was “inappropriate” for the situation in Maharashtra and the “court has been misinterpreted” by the petitioners.
He said that the issues raised in the petition can also be decided by the High Court. “Jumping is allowed by the Supreme Court, but only in rare cases, and just because something is coming up in the press or just because it has some amount of public life, it is not a reason to jump,” he said. He said that the petitioners did not give any reason why they should not be asked to move the High Court.
Singhvi said, “There is not a single case in India, except the interim order of the High Court of Rajasthan, which is pending in the SC, in no case has your Lordship interfered or acted while the Speaker forfeited the matter.” Is.”
Explained
next step unclear
While the SC has given interim relief to the rebel Shiv Sena MLAs, it is not clear what happens next on the ground. If a floor test is called before the next court hearing, it could trigger another chain of events.
He pointed to the Supreme Court’s February 1992 decision in Kihoto Holohan v. Zachilhu et al. that no proceedings on the Speaker’s actions shall take place before any court until it has decided an issue before them. .
Justice Surya Kant wanted to know whether Kihoto is also a case where there is a question of retaining or removing the Speaker.
No, Singhvi replied, adding that there was no decision in which the issue was up to Nabam Rebiya, which however “is in line with Kihoto Holohan to let the Speaker make the wrong decision” and the SC “then intervened on the final order”. will do”.
On notices by the rebel MLAs for the speaker’s disqualification, Singhvi said that according to press reports, he “sent from an undisclosed, unverified email, and did not serve notice to the speaker effectively saying one line that ‘we have accused you of Faith is lost.’.”
“And the Speaker has not already taken it on record and dismissed it until it is satisfied that it is a valid no-confidence motion. It is already decided,” he said.
The court wondered whether the deputy speaker himself could decide on the notice for his removal.
“Of course, he can decide the validity of the notice,” replied Singhvi.
The bench said that if the vice-chairman is claiming that no notice was served on his removal, he will have to seek an affidavit from the prescribed authority.
Singhvi said this is a case where an email was sent which was treated as a notice and rejected by the Vice President.
Justice Surya Kant said that the question then arises as “can the Vice-Chairman become a judge in his own case?”
Senior advocate Rajeev Dhavan, appearing for the Deputy Speaker, submitted that there was a notice to which the Deputy Speaker had also sent a reply in which he had said, “Until and until the genuineness and veracity of such communication and its signatories are ascertained.” till then no further action is taken. Can be taken” and hence it is “not being taken on record”. He said it was not sent from a registered email, and was not sent to the legislative office.
Justice Surya Kant said that some concerned officer should file an affidavit and say on record what happened, in what manner it was received, whether genuineness was ascertained. Dhawan agreed to do so.
Senior advocate Devdutt Kamat, appearing for the respondents, also submitted that the SC has “conclusively decided” in 2020 that in cases challenging disqualification, the party should first approach the HC.
He also argued that the disqualification notice of the Speaker cannot be issued until the Assembly is in session.
Kamat said the entire “swamp of mistrust against the Speaker” does not have the sanction of the Constitution. While there can be a no-confidence motion against the Chief Minister, the term used for the Speaker or the Deputy Speaker is “removal” because “there must be a reason”.
Seeking to fix the next hearing on July 11, the bench wanted to know whether it can record a statement that the deputy speaker will put on hold the disqualification case till then.
Dhavan said that he had no such direction after which the bench said that it has to say something in the order.
Opposing this, Singhvi said there was no need to record and if the court did so, “there would be a breach of mutual respect between the legislature and the judiciary” and they would “equal to an interim adjournment”.
Kamat, who opposed the suggestion of an interim order, said, “There is no order by any court to stay the disqualification when the proceedings have commenced.”
He said the disqualification proceedings were proceedings in the House as per the Tenth Schedule to the Constitution and therefore, till the final order is passed, there is no question of judicial review.
“Ultimately… we have to determine the capacity of the Vice President to proceed with the matter. Now in that case, let’s say today if we don’t pass any appropriate interim order, which means that the Vice President has to be put on merit. Will have the right to go ahead and pass orders,” Justice Kant said.