The Supreme Court of India has been told by the Senior Advocate Kapil Sibal today that the Tenth Schedule of the Constitution is been misused by all the Governors and there arises a need to decide if a whole new system is needed.
The Chief Justice of India DY Chandrachud bench was apprised by the Senior advocate Kapil Sibal about the urgent need for referring the case to a larger bench in light of the Nabam Rebia case.
Today, during the hearing, where advocate Sibal appeared for the Uddhav Thackeray faction, his submission centred around the correctness of the Nabam Rebia case.
Advocate Sibal highlighted the Article 179 and 181 of the Constitution and said that the Rebia case had “polluted” the whole process of disqualification,which has ultimately lead to toppling of government. He qualified his own statement by stating that the people who had been disqualified were allowed to vote in the floor test.
Sibal said that it is the misfortune people who are disqualified, come back through judicial review, this sets a wrong image, governments cannot be toppled like this.
It is important to note that in the Nabam Rebia case, the Supreme court had said that tyebonky way constitutional purpose and constitutional harmony can be maintained and preserved, is if the Speaker refrains from adjudication of a petition for disqualification under the Tenth Schedule, whilst his own position, as the Speaker, is under challenge.
The court has said that this would also, allow the two provisions [Article 179(c) and the Tenth Schedule] to operate in their individual constitutional space, without encroaching on the other.
The petition at present concerns with the situation which unfolded in Maharashtra, when Eknath Shinde’s rebellion against the Maha Vikas Aghadi (MVA) government then led by Chief Minister Uddhav Thackeray raise important constitutional questions relating to interpretation of Schedule X of the Constitution pertaining to disqualification, as well as the powers of the Speaker and the Governor and the power of judicial review thereof.
A bench consisting of great judges including then Chief Justice NV Ramana, Justice Krishna Murari and Justice Hima Kohli had formulated 11 questions for consideration of a constitution bench.
Last year in November the Constitution bench gave a 4 week period to the two factions of Shiv Sena led both laUddhav Thackeray and Maharashtra Chief Minister Eknath Shinde to file their compilations of arguments, index, case law references etc.
Later when the matter was up again in December, the Supreme Court had listed the case for today with due instructions to Kapil Sibal who was representing the Uddhav Thackeray panel for submitting a note referring to the seven judges bench on the same.