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Nabam Rebiaand Bamang Felix Vs Deputy Speaker, famously known as the Arunachal Pradesh President’s Rule was adjudged by the Supreme Court over the Governor’s discretion and scope of judicial review against the Governor’s functions. It was held that the Governor can use his discretion only with the aid and advice of the Council of Ministers. Shiv Sena cites Nabam Rebia’s judgment stating that Deputy Speaker does not have the authority to decide disqualification when a notice for his removal is pending.

Key Takeaways

  • The major issues in the case were :
  1. Is whether Governor’s authority to advance the Assembly constitutional?
  2. Whether Speakerhas a right to disqualify MLA’s motion for his removal is pending at the House.
  • Constitution Bench of the Supreme Court held in the Nabam Rebia case, that the Governor can convene an Assembly meeting for a floor test only upon recommendation of Cabinet and that a Speaker cannot initiate disqualification proceedings when a resolution for his removal is pending.
  • Shiv Sena’s Udhav Thackeray cited this case to state that the Deputy Speaker cannot dismiss MLAs when a motion for his removal is itself pending.
  • The Supreme Court moved the case to the Constitutional Bench, to consider the interim prayer to restrain ECI from proceeding further with the application by Shinde’s camp on using the Shiv Sena Party’s symbol.

Key members in the case

The parties to the case include Nabam Rebia and Bamang Felix as appellants and Tenzing Norbu Thongdok as respondents. The bench comprises Justice N V Ramana, Justice Pinaki Chandra Ghose, Justice Madan B Lokur, Justice Dipak Misra, and Justice Jagdish Singh Khehar.

There were three main issues in the case which included the scope of the Governor's discretionary power [Art. 163(2)]; Governor’s discretionary power with regards to the functioning of State Legislature while summoning of the session, removal of Speaker and proceedings of disqualification under the tenth Schedule of the constitution; constitutional validity of the Speaker deciding on disqualification proceedings under the tenth Schedule when a petition for his removal is itself pending before the House.

Case outline

A constitutional crisis ascended between November 2015 and March 2016 in Arunachal Pradesh. The House of 60 then consisted of 47 members from Indian National Congress, making them the majority, 11 from Bharatiya Janata Party (BJP), and 2 other independent members. On 19 November, 2015 around 13 members of the Assembly including 11 from BJP and 2 independent MLA’s sent a letter to the Governor addressing their discontent with the Speaker and the government. The catastrophe began when 21 MLAs from Congress rebelled against the then ruling government demanding the removal of Arunachal’s Chief Minister Nabam Tuki and Speaker Nabam Rebia, backed by the Opposition. They refused to attend party meetings reasoning the mismanagement of the Chief Minister is optimizing funds.

Governor Rajkhowa had also advanced the session of the Uttarakhand Assembly from 14 January, 2016 to 16 December, 2015 without taking the advice from the Chief Minister and listed the removal of the Speaker on the agenda of January, 2016. On 15 December, 2015, the Speaker disqualified 14 of those who rebelled against the formed government on grounds of defection even before the Assembly met and this decision was quashed by the Deputy Speaker. The rebels requested the Governor to direct CM Nabama Tuki to conduct a trust vote in the Assembly after they left the party to publicly identify themselves with the opposition. On 16 December, 2015 the resolution to remove Speaker Nabam Rebia was adopted.

The ruling government deemed the advancement illegal and locked the session. A total of 33 MLAs gathered in a community hall and they voted for the removal of the Speaker from his post and the Chief Minister was removed the following day. Kalikho Pul was appointed as the new Chief Minister.

Speaker Rebia moved the Guwahati government to challenge many incidents including the advancement of the Assembly. The Guwahati High Court held that neither the Governor’s discretion under Article 163 nor the legislature procedure under Article 212 can be challenged in the Court, and they were legally valid. The actions of the Governor and the Assembly were not arbitrary.

The Speaker Rebia appealed to the Supreme Courtin July 2016, statingthat the Governor’s interference and his action exceeded the statutory power limit falling out of the scope of Articles 161 and 163(2). Seeking review from the High Court’s verdict, he called it to be “constitutionally impermissible” for a Speaker to decide on disqualification of a member under anti-defection law when a no-confidence motion is pending against him. On 5 January, 2016, the High Court stayed the orders on the disqualification of Congress MLA and Speaker’s dismissal plea. They reasoned that the exercise of powers by the Speaker under the Xth Schedule was not conforming to natural justice or fairness.

The Speaker Rebia contended that though Article 163 of the Constitution states the Governor to act upon consultation with the Council of Ministers and at his discretion in exceptional cases, the discretionary power to the Governor is “constitutional discretion”. Deputy Speaker defended that Governor has absolute discretion and it is not subject to judicial review.

Article 174 vests power with Governor to summon, prorogue and dissolve the State Legislature. The Court was to decide whether this power can be exercised on its own or with the advice of the Council of Ministers.

A five-judge bench comprising Justice J S Khehar, Justice Dipak Misra, Justice P C Ghose, Justice M B Lokur, and Justice N V Ramanaat the Supreme Court unanimously held that the powers of the Governor are not absolute and that Speaker cannot disqualify members when a motion for removal is pending against himself.

Judgment

On 13 July, 2016 the five-judge bench unanimously held that the Governor’s power to summon, dissolve and advance a session falls within the ambit of judicial review. The majority opinion on behalf of Justice P C Ghose was written by Justice Khehar and Justice Dipak Misra, and Justice N V Ramana and Justice M B Lokur wrote concurring opinions each.

The SupremeCourt in 2016, also held that the power to summon the House is not solely to be exercised by the Governor himself, but only on the advice of the Council of Ministers. The court further emphasized that the Governor is not elected personnel and is a mere nominee of the President, and thus the Governor cannot have overriding power over the representatives of people from the Houses of the legislature. If Governor was allowed to overrule the state legislature or the state executive would deteriorate the democratic principles in the Constitution as it enshrines within it, the ministerial responsibility.

Article 174 of the Indian Constitutiongrants power to the Governor to summon, dissolve and prorogue the State Legislative Assembly. This power can be exercised by the Governor under Article 163 only with the aid of the Council of Ministers and Chief Minister. The discretionary power under Article 174 can be invoked by the Governor when the Chief Minister has lost his support in the house.

The Court upheld that the Governor does not possess wide discretionary powers and it is subject to the constitution, it was also further confirmed that the discretionary power of the Governor does not extend to the powers conferred under Article 174 to summon, prorogue and dissolve the House. Thus he cannot summon the House, address the Assembly, or determine agendas without consultation with Ministers.

The next question in consideration was whether the disqualification of MLAs by the Speaker when a motion of removal was pending against him. Article 179(C) provides for a Speaker to be removed from his office by a majority resolution of “all then members” (members present and voting) in the Assembly.Court held that the Speaker’s decision to disqualify the MLAs was an attempt to overcome the voting by all the then members, to escape his removal. This was contended as unconstitutional.

On 6 January 2016, the Central government imposed President’s rule by dismissing the State government. Curt however nullified the President’s rule and reinstated the State government back to power with Nabam Tuki as Chief Minister but he was shortly voted out of power in floor test. The Court’s decision was reversed by politics.

Supreme Court Constitution Bench hears petition from Shiv Sena

Udhav Thackeray and Eknath Shinde from factions in Shiv Sena filed a petition to the Supreme Court ensuing a political row that led to the removal of Thackery and the elevation of Shinde as Chief Minister. There was found to be a rebellion of MLAs in the Assembly. On 22 August, 2022, the Supreme Court referred this case to a five-judge Constitution Bench presided by former CJI N V Ramana. Justice Ramana said that in the Supreme Court’s decision of the Nabam Rebia case which dealt with the threshold of power of Speaker or Deputy Speaker when a motion for his disqualification is pending, “requires gap filling to uphold constitutional morality” and is therefore forwarded to the Constitution Bench to conduct the requisite gap-filling exercise.

On 20 June, 2022, Shinde’s faction of Shiv Sena cross-voted in the Maharashtra MLC polls. Later, Shinde along with 40 MLA’s moved from Surat to Guwahati. Rebel MLAs declared Shinde as the leader of the Shiv Sena party following which Shiv Sena filed a petition for disqualifying 16 rebel MLAs to the Deputy Speaker. Subsequently, Shinde’s faction moves in a no-confidence motion against the Deputy Speaker and the Deputy Speaker serves a disqualification notice to the rebel MLAs.

Shinde challenged in the Supreme Court against the disqualification made by the Deputy Speaker when a no-confidence motion was against him, but the Court refused to stay the floor test in Maharashtra Assembly. Udhav Thackeray then resigns as CM and MLA and then Governor called the rebel Shiv Sena to form a Governor with Eknath Shinde as CM. BJP MLA, Rahul Narwekar was elected by the Assembly as the new Speaker.

When Shiv Sena – BJP government won the floor test, a petition was filed before the Maharashtra Assembly Speaker to suspend Thackeray’s MLAs, and Shiv Sena rebel chief, Bharat Gogawale issued notice to Thackeray to respond to the disqualification petition. Another petition was filed by Thackeray before the Supreme Court challenging the Maharashtra Governor Bhagat Singh Koshyari’s invite to Eknath Shinde to form the government after Thackeray’s resignation. Supreme Court hears the petition and moves it toa larger bench for examination. Upon transfer to a larger bench, Shinde argued it as not necessary as the facts in Xth Schedule were itself not clear. So the court ordered the parties to frame their issues based on which the reference to a larger bench would be decided.

On 27 June, 2022 the Supreme Court put the disqualification proceedings on hold till 11 July to seek responses to the pleas by the MLAs who questioned the legal validity of notices of their disqualification. Senior Counsel N K Kaul representing the rebel MLA’s stated to the Vacation Bench comprising Justice Surya Kant and Justice J B Pardiwala that Udhav Thackeray’s group is in minority and has been “subverting the state machinery”. He further stated that the MLAs in Bombay are not safe and 39 MLAs are against the minority group. He cited the Nabam Rebia case which said that the Deputy Speaker is not eligible to disqualify MLAs when a plea for his removal is itself pending.

Udhav Thackeray’s faction argued that Shinde’s faction’s majority in the Assembly was contrived while Shinde claimed that the Xth Schedule does not apply to inner-party democratic disputes. Senior Counsel Kapil Sibal argued that if the High Court’s judgment was held valid, then it would mean that there is a political process over the constitutional power of the Speaker under the Xth Schedule or under the anti-defection law. Senior Counsel Abhishek Manu Singhvi also argued that if the Supreme Court Bench validates the judgment then it would be like allowing "constitutional sin (of defection) and a constitutional sinner (defector) to take advantage of his own wrong (if violating the Tenth Schedule providing for provision to deal with defections).”

The Constitution Bench was to assemble on 25 August as per the Court, to consider the interim prayer to restrain the Election Commission of India from proceeding with the case filed by Eknath Shinde. Shinde’s application sought to recognize his camp as the real Shiv Sena and claimed the right to use the party’s election symbol of bow and arrow.

Conclusion

According to the judgment delivered in the Nabam Rebia case, it is clear that the Governor should act with the aid and advice of the Council. The Speaker and the Deputy Speaker cannot disqualify an MLA when a motion for removal is pending against him itself.

Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE


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