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SC gives Sena rebels time till July 12 to respond to disqualification notice for defection

The Supreme Court on Monday said rebel Shiv Sena legislators led by Eknath Shinde need “breathing time” while giving them time till July 12 to respond to a notice issued by Deputy Speaker Narhari Zirwal on June 25 initiating disqualification proceedings against them for defection.

Shinde and 15 other legislators, against whom disqualification notice was issued, were supposed to submit their written responses before the Deputy Speaker by 5.30 p.m. on June 27.

A Vacation Bench of Justices Surya Kant and J.B. Pardiwala heeded their contention that they were given hardly 48 hours to respond to the disqualification notice when the law required the Speaker to grant them seven whole days. The apex court, it seems, has now ended up giving the rebel legislators a full fortnight to file their replies.
A View of the Supreme Court which was hearing the Maharashtra MLA’s Dissqualification case in New Delhi on June 27, 2022.

“The disqualification notice is a classic example of the Deputy Speaker acting hand in glove with the government in an attempt to hastily disqualify the petitioner [Mr. Shinde] along with other supporters. The disqualification rules and the Maharashtra Legislative Assembly Rules are sought to be completely bypassed,” Shinde, through senior advocate Neeraj Kishan Kaul, had alleged.

Virtually putting the disqualification proceedings on hold, the Bench, in its order, recorded that as an “interim measure, the time granted by the Deputy Speaker to the petitioners and other similarly placed MLAs to submit their written submissions today [on Monday] by 5.30 p.m. is extended till July 12, 2022, 5.30 p.m.”

The Bench also took on record the statement made by the Maharashtra government that no harm would be caused to the lives, liberty and properties of the 39 MLAs who have rebelled against the Uddhav Thackeray government. Shinde had claimed that there was an “ongoing agenda” by which party leaders were instigating their cadres to intimidate them. He had alleged that Shiv Sena parliamentarian Sanjay Raut had threatened them that “he would make it difficult for the MLAs to return to Maharashtra and move around in Maharashtra”.

The court, however, refused a plea by the rebel legislators to direct the Centre to provide them security. “We don’t want any involvement by the Central government… The State police will take care,” Justice Kant observed.

Listing the case for hearing on July 11, the Bench issued formal notice to the Deputy Speaker, the ruling Thackeray camp leaders Ajay Chaudhary and Sunil Prabhu and the Centre through the Solicitor General.

Senior advocate Devadatt Kamat, for the Thackeray camp members, urged the Bench to ensure that no floor test took place till the issue was finally decided in court. “Ah, the cat is out of the bag,” Kaul quipped at Kamat’s submission.

“If there is any change in status quo or if anything unlawful were to happen, Your Lordships should give us the liberty to approach you,” Kamat persisted.

But the court remained non-committal, saying it cannot pass orders on the basis of a hypothesis or presumption about the future. “Our doors are always open to any citizen of the country,” Justice Kant addressed the lawyer.

The hearing began with Kaul, for Shinde, questioning the very competence of the Deputy Speaker to issue them a disqualification notice. He contended that Zirwal himself was facing a motion for his removal as Deputy Speaker. Kaul said over 30 rebel legislators had moved a resolution for Zirwal’s removal on June 21, that is, days prior to the issuance of the disqualification notice on June 25.

“In the Nebam Rebia judgment, this court had held it was constitutionally impermissible for a Speaker to adjudicate on disqualification petitions under the Tenth Schedule while a notice of resolution for his own removal from the Office of the Speaker was pending… Besides, the seat of Speaker is vacant since Nana Patole resigned from office in February 2021. Thus, there is no authority who can adjudicate upon the disqualification petition. Disqualification petition is not maintainable,” Kaul argued.

Senior advocate Rajeev Dhavan, for the Deputy Speaker, and senior advocate Abhishek Manu Singhvi, for Chaudhary and Prabhu, contended that the notice of resolution for Zirwal’s removal was suspect as it was sent from an unverified mail ID.

“A fly-by-night notice will not do to injunct the Deputy Speaker from taking action and issuing notice for disqualification of the MLAs. The Deputy Speaker acts as a tribunal while deciding a disqualification petition. An email dashed off from an unverified mail ID cannot stop him,” Dhavan countered.

Dhavan said the Deputy Speaker had suspicions about the genuineness of the removal notice and decided to not take it on record. The rebel MLAs had originally been expected to address concerns about the authenticity of the removal notice and the veracity of the signatures on it by 5.30 p.m. on June 27.

Besides, the senior lawyer submitted that Article 179 of the Constitution mandates 14 days’ notice to be given of the intention to move a resolution in the Assembly to remove the Deputy Speaker.

“Mr. Dhavan, you cannot first say the removal notice was invalid and then say 14 days have not elapsed. If the notice was invalid, there is no question of 14 days,” Justice Kant observed.

Singhvi and Kamat argued that the petitions of Shinde and the other legislators were not maintainable. They referred to the court’s decision in Kihoto Hollohan case (1992) to argue that judicial review cannot be permitted when the Speaker was seized of the proceedings for disqualification.

But the court said the Kihoto Hollohan case did not deal with a situation in which the Speaker’s continuation in office is in question. A second petition filed by the MLAs, including Bharat Gogawale, said there was dissatisfaction among Shiv Sena members about the corruption in the Maharashtra government while pointing to the cases of former Home Minister Anil Deshmukh, Minority Minister Nawab Malik, who are both in jail, the latter for his alleged involvement with the underworld don Dawood Ibrahim.

They said their requests to Chief Minister Thackeray to “change his way” and align his ideologies with that of his father and Shiv Sena founder Balasaheb Thackeray fell on deaf ears.