New Delhi, Feb 16,2023: The Supreme Court on Friday will pronounce its judgment on a plea made by the Uddhav Thackeray’s Shiv Sena to refer the five-judge bench decision in Nabam Rebia case of 2016 to a seven-judge bench.

During the hearing, the apex court 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.

A five-judge bench, headed by Chief Justice of India D.Y. Chandrachud, 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”, it said.

It 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 Thackeray faction, submitted that in the meantime, a legally elected government will be toppled.

“Take the present casea. Eknath Shinde, he is the CM now. How is it going to relate back?”

The bench 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 2 days’ notice and the apex court had extended the time for reply till July 12, 2022.

“So, the Speaker’s resolution was not tested in the House. Resignation obviated the floor test. As a result of that, the consequences of the votes, which would have otherwise been cast by persons sought to be disqualified, did not emerge. So Nabam Rebia does not arisea..”.

The Chief Justice said: “So can the court venture into the correctness of Nabam Rabia when the factual circumstances do not arise?”

It noted that it is not a case of defection, but a case of realignment, where the CM is in minority, and the CM sees the writing on the wall and the speaker issues notice, should the Speaker restrain it till some time?

Sibal argued that under the Tenth Schedule, there is no defence of majority and only defence is merger, which is not there. He added that even if the CM is in minority, assuming so, they are still liable to disqualification and “you go out of house, face election and come back…”.

The bench, also comprising Justices M.R. Shah, Hima Kohli, Krishna Murari, and P.S. Narasimha, wrapped up the arguments on Thursday on point of reference after hearing a battery of senior lawyers – senior advocates Kapil Sibal, Abhishek Manu Singhvi, and Devadatt Kamat for the Thackeray faction and senior advocates Harish Salve, and Neeraj Kishan Kaul, assisted by advocate Abhikalp Pratap Singh, for the Shinde side.

Sibal said the problem with the Nabam judgment is that it says the moment the notice is given, the Speaker cannot preside and these are serious issues. Here the elected government was toppled and the Speaker could not do anything, he added.

In December last year, the Thackeray faction had asked the Supreme Court to refer the judgment in the Nabam Rebia case to a seven-judge bench of the apex court.

In August this year, a three-judge bench of the apex court had said that a five-judge constitution bench will hear a batch of petitions filed by Maharashtra Chief Minister Shinde and Uddhav Thackeray faction on queries related to defection, merger and disqualification. The three-judge bench, in its reference order, had framed the first issue as whether notice for removal of a Speaker restricts him from continuing with disqualification proceedings under Tenth Schedule of the Constitution, as held by the top court in Nabam Rebia (by a five-judge bench).

Thackeray suffered a major setback after Shinde and other MLAs rebelled against him and ousted him as Maharashtra CM. They also laid claims to the Shiv Sena party and its symbol as well.