Maharashtra Political Crisis Day #1: Sr.Adv. Sibal Argues for 7-Judge Bench Reference

Sr. Adv. Kapil Sibal Claims That the 10th Schedule Has Been Rendered Ineffective

Senior Advocate Kapil Sibal, for the Uddhav Thackeray faction, asked the Bench to reconsider the SC’s 2016 Nabam Rebia decision which decided the extent of the Speaker’s powers in cases of political defection. He argued that as per Nabam Rebia, if a notice has been issued for the removal of the Speaker, they cannot decide the disqualification of House members under the 10th Schedule of the Constitution.

CJI Chandrachud enquired if the Speaker is rendered ineffective if a notice for their removal is issued. Mr. Sibal clarified that as per Nabam Rebia, the issuance of a notice for the Speaker’s removal places the Speaker on hiatus. Taking the point further, he questioned how a constitutional authority can be placed on hiatus at any point of time. 

Mr. Sibal pointed out that in this context the Speaker has two functions: as the head of the House, and as a tribunal under the 10th Schedule. Issuing a notice for the Speaker’s removal without intending to take it forward stays the functioning of a constitutional authority. Further, 7-day or 14-day notice period may not always be ideal as some legislatures hold sessions for very short periods of time.

Mr. Sibal stated that the removal of the Speaker of a House should only be done when the House is in session to prevent malpractice. Otherwise, he claimed, governments will be toppled at will.

The Bench pointed out that if the Speaker is allowed to function despite having a pending removal notice, then they can influence the removal vote by disqualifying members first. Mr. Sibal stated that members who give up party members should be disqualified. 

Mr. Sibal argued that if a member ends up disqualified for defection, they will be considered as disqualified from the date of their defection. Any attempts after this date to delay the process, such as issuing a notice against the Speaker, will all be invalid.

He explained that falsely disqualified members had recourse through the Courts. On the other hand, if the Speaker is prevented from performing their constitutional duty, governments can fall just like the MVA government did in Maharashtra last year.

Sr. Adv. AM Singhvi stated that the object of the 10th Schedule is to prevent House members from enjoying the fruits of defection. However, the Nabam Rebia decision disables the Speaker through a mere notice, leaving the 10th Schedule ‘frozen’.

The Bench will hear Sr. Adv. Harish Salve for the Maharashtra government tomorrow (February 15th).