NEW DELHI: The tussle over the disqualification of 38 rebel Shiv Sena legislators has brought the spotlight on the anti-defection and disqualification law besides the role of the Speaker in taking a decision on this issue.
As the fight between the rebels and the Uddhav Thackeray faction reached the Supreme Court, the Nebam Rebia case was cited by the breakaway group’s advocate to underline the ‘illegality’ of the Deputy Speaker’s action serving them the disqualification notice for defection. The rebels’ advocate Neeraj Kishan Kaul argued that the Supreme Court had held in the Nebam Rebia case that it was “constitutionally impermissible for a Speaker to adjudicate on disqualification petitions under the Constitution’s Tenth Schedule while a notice of resolution for his own removal from the Office of the Speaker was pending”.
Referring to the Speaker’s post being vacant since the resignation of Nana Patole in February 2021, Kaul pointed out that “there was no authority who can adjudicate the disqualification petition” and that it was “not maintainable”.
Appearing for the Deputy Speaker Narhari Zirwal, ruling Thackeray camp leaders Ajay Chaudhary and Sunil Prabhu, senior advocates Rajeev Dhawan and Abhishek Manu Singhvi took the stand that the notice of resolution for the former’s removal (by the Eknath Shinde group) was sent from an unverified email ID and was therefore suspect.
Inserted by the Rajiv Gandhi government in 1985, the Tenth Schedule lays down the rules and procedures for disqualification of a member from the house by the presiding officer. The presiding officer can act against such members on complaints received by any other member of the house. A member attracts the disqualification provision if he voluntarily resigns from the party or when he defies the party’s directives by either voting against the party’s directives or abstains from voting by defying the party whip.
The definition of ‘voluntary resignation’ was earlier expanded by the Supreme Court. If a member indulges in anti-party activities without resigning from the party, it may be inferred that he has voluntarily given up the membership of the party, the court had said.
Prior to 1992, the Tenth Schedule barred judicial scrutiny of a Speaker’s decision to disqualify a member for defection or anti-party activities. In the 1992 judgment, the Supreme Court struck down this provision, holding that a presiding officer’s decision was open to judicial scrutiny by the high courts and the apex court.