(Dhananjaya Y Chandrachud, C.J. and M.R. Shah, Krishna Murari, Hima Kohli, Pamidighantam Sri Narasimha, JJ.)
Writ Petition (Civil) No 493 of 2022, decided on February 17, 2023
Subhash Desai ___________________________________ Petitioner;
v.
Principal Secretary, Governor of Maharashtra and Others _____________________________________________ Respondent(s).
With
Writ Petition (Civil) No 469 of 2022
With
Writ Petition (Civil) No 468 of 2022
With
Writ Petition (Civil) No 479 of 2022
With
Writ Petition (Civil) No 470 of 2022
And With
Writ Petition (Civil) No 538 of 2022
Writ Petition (Civil) No 493 of 2022; Writ Petition (Civil) No 469 of 2022; Writ Petition (Civil) No 468 of 2022; Writ Petition (Civil) No 479 of 2022; Writ Petition (Civil) No 470 of 2022; and Writ Petition (Civil) No 538 of 2022
The Order of the court was delivered by
Order
1. During the course of the hearing, a preliminary submission has been made before the Court to the effect that the decision in Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly1, requires reconsideration by a Bench of seven Judges.
2. Mr. Kapil Sibal, Dr. Abhishek Manu Singhvi and Mr. Devadatt Kamat, learned Senior Counsel seek a reference to a larger Bench. The submission has been opposed by Mr. Harish Salve, Mr. Neeraj Kishan Kaul, Mr. Mahesh Jethmalani, Mr. Maninder Singh and Mr. Siddharth Bhatnagar, learned Senior Counsel appearing for the other side. Mr. Tushar Mehta, learned Solicitor General, appeared on behalf of the Governor of the State of Maharashtra.
3. Arguments have been concluded on the issue as to whether a reference should be made on the correctness of the decision in Nabam Rebia (supra) to a Bench of seven Judges.
4. In Nabam Rebia (supra), three judgments were delivered for the Constitution Bench, by Justice J S Khehar, Justice Dipak Misra (as the learned Chief Justices then were) and by Justice Madan B Lokur.
5. The opinions of Justice J S Khehar and Justice Dipak Misra hold that the Speaker should desist from considering a petition for disqualification under the Tenth Schedule to the Constitution when a notice indicating an intent to remove him has been moved. This principle is formulated in the following observations in the decision of Justice J S Khehar:
“194…we hereby hold, that it would be constitutionally impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule, while a notice of resolution for his own removal from the Office of the Speaker, is pending.”
6. A similar view has been expressed by Justice Dipak Misra in the following extract:
“238…When there is an expression of intention to move the resolution to remove him, it is requisite that he should stand the test and then proceed. That is the intendment of Article 179(c) and the said interpretation serves the litmus test of sustained democracy founded on Rule of Law; and the Founding Fathers had so intended and the constitutional value, trust and morality unequivocally so suggest. It would be an anathema to the concept of constitutional adjudication, if the Speaker is allowed to initiate proceeding under the Tenth Schedule of the Constitution after intention to remove him from his Office is moved…”
7. However, Justice Madan B Lokur, in the course of his judgment, held that:
“401. In the view that I have taken, I am of the opinion that the view expressed by my learned Brothers relating to the power or propriety of the Speaker taking a decision under the Tenth Schedule of the Constitution with regard to the fourteen Members of the Legislative Assembly does not at all arise in these appeals.”
8. The issue of whether a reference to a Bench of seven Judges should be made cannot be considered in the abstract; isolated or divorced from the facts of the case. Whether, the above principle which has been formulated in Nabam Rebia (supra) has an impact upon the factual position in the present case, needs deliberation.
9. In the above backdrop, the issue whether a reference of the decision in Nabam Rebia (supra) to a larger Bench is warranted, would be determined together with the merits of the case.
10. Consequently, the batch of cases is set down for hearing on merits on Tuesday, 21 February 2023 at 10.30 am.
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1 (2016) 8 SCC 1
