Shiv Sena rebel MLAs received temporary relief when the Supreme Court ruled they had until 5.30 p.m. on July 12 to send their responses, despite Maharashtra Deputy Speaker Narhari Zirwal’s request that they respond by Monday evening to notices on petitions seeking their disqualification from the Assembly.
Following notice on two petitions filed by Sena rebel leader Eknath Shinde and 15 of his faction’s MLAs who had received disqualification letters, the vacation bench of Justices Surya Kant and J. B. Pardiwala set July 11 as the next date of hearing.
The bench ordered that the deadline for written submissions set by the Deputy Speaker for petitioners or other MLAs in a similar position to submit them today by 5 p.m. be extended until July 12, 2022, 5 p.m.
The court noted the statement of the Maharashtra standing counsel that “adequate steps have already been taken and the state government shall further ensure that no harm is caused to the life, liberty, and property of the 39 MLAs or their family members,” in response to the rebel MLAs’ claim that their life and property were in danger.
It mandated that the respondents submit a counter-affidavit within five days and that the MLAs provide any reply affidavits within the next three days.
After the MLAs and the Assembly Deputy Speaker attempted to contradict one another over the notice that the dissident MLAs claimed to have filed, seeking the Deputy Speaker’s disqualification, it also sought a counter-affidavit.
The Deputy Speaker said that because the notice was issued from an unregistered email, its veracity should not have been recorded. The judge ordered that the developments in this be detailed in an affidavit after wondering what procedures had been taken to verify its authenticity.
Senior attorneys A M Singhvi and Devdutt Kamat, who were representing the Deputy Speaker and other respondents, rejected the request for interim orders, arguing that because the Speaker’s and Deputy Speaker’s disqualification hearings are House proceedings, courts cannot get involved.
However, the bench cited a Supreme Court decision that stated that judicial review is not prohibited.
Senior Attorney Neeraj Kishan Kaul, who appeared on behalf of the rebel MLAs, cited the 2016 Constitution Bench decision in Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Assembly to make the case that the Speaker or Deputy Speaker of an Assembly cannot decide to disqualify MLAs while a motion for their removal is under consideration.
It “clearly states that the Speaker will not proceed with the disqualification of any members or consider doing so until the matter of removal of the Speaker or the Deputy Speaker is decided. And the reason for that is that, aside from everything else, many political considerations enter into these matters, and if during the 14-day period that Article 179(c) stipulates — that you first issue a notice and within 14 days thereafter, that notice under the rules is read out in the Assembly and a motion is moved — a Speaker tends to disqualify what he perceives to be an inconvenient group of people and reduce the strength, which is what the SC claims — that is
How can the Deputy Speaker at all proceed with the matter when a Constitution Bench of the SC says that when his own issue of removal is not decided, till then he cannot proceed with disqualification? Kaul argued that the rebel MLAs had served notice for the Deputy Speaker’s removal on June 25, even before the disqualification notices were issued to them on June 25.
When the bench questioned why these issues couldn’t be brought before the Deputy Speaker directly, Kaul responded that the Supreme Court states he cannot address them in any way.
In response to a specific question from the bench about why they hadn’t filed a case with the High Court under Article 226 of the Constitution, Kaul pointed the bench to statements made by Shiv Sena figures like Sanjay Raut and claimed that the climate in Mumbai did not allow them to pursue legal action there.
A minority of a legislature party now… is basically subverting the entire state machinery, Kaul claimed, pointing out that the Shinde camp, which had 39 MLAs, was the Shiv Sena’s majority. Our homes are being set on fire, and we are under threat of harm physically… According to a party official, 40 bodies will be brought in from Gauhati, where they will be slaughtered like bulls, and you should wait and see what will happen to them in the days to come.
Because of the vilification of that climate, he claimed, “the atmosphere and the environment in Bombay at the time are not at all suitable for us to lawfully pursue our legal and constitutional rights.”
Ajay Chaudhari, the leader of the Shiv Sena legislature party, and Sunil Prabhu, the chief whip, were represented by Singhvi, who stated that the Nabam Rebia decision is “inapplicable” to the Maharashtra situation and that the petitioners “wrongly interpreted it to the court.”