Nabam Rebia Decision Should Be Reviewed as It Has Great Mischief Potential : Daily Current Affairs

Relevance: GS-2: Parliament and State legislatures—structure, functioning, the conduct of business, powers & privileges, and issues arising out of these.

Key Phrases: Supreme Court, speaker Deputy Speaker, Article 179 of the Constitution, Nabam Rebia Judgement, Article 179(c),

Why in News?

The law laid down by the Supreme Court in the 2016 case Nabam Rebia versus Deputy Speaker that a speaker cannot initiate disqualification proceedings when a resolution seeking his removal is pending should be reviewed.

How can the Speaker be removed?

Under Article 179 of the Constitution, a speaker (or Deputy Speaker) can be removed by a resolution of the Assembly passed by a majority of “all the then members of the Assembly”. The process begins with a notice of at least 14 days. (Article 94 of the constitution deals with the removal of the speaker and deputy speaker of Lak Sabha)

What does Nabam Rebia’s decision say?

The view in Nabam was premised on the interpretation of the words "all the then members of the Assembly" in Article 179(c) of the Constitution.
The 5-judge bench held that the words "passed by a majority of all the then members of the Assembly", would prohibit the Speaker from going ahead with the disqualification proceedings under the Tenth Schedule, as the same would negate the effect of the words "all the then members", after the disqualification of one or more MLAs from the House.
The words "all the then members", demonstrate an expression of definiteness.
Any change in the strength and composition of the Assembly, by disqualifying sitting MLAs, for the period during which the notice of resolution for the removal of the Speaker (or the Deputy Speaker) is pending, would conflict with the express mandate of Article 179(c), requiring all "the then members" to determine the right of the Speaker to continue"
In other words, all the then members who were present in the house at the time of giving the notice for removal should be present at the time for voting on the removal of the Speaker.
This ruling gave a window to defecting legislators to stall or circumvent the Tenth Schedule by seeking removal of the Speaker when disqualification proceedings are anticipated — effectively tying the hands of the Speaker.

What were the reasons for the Supreme Court’s 2016 decision?

The Supreme Court’s reasoning in barring the Speaker from acting under the Tenth Schedule when a notice for his removal is pending, is to ensure that the Speaker who disqualifies legislators must enjoy the confidence of the Assembly.

Why interpretation of the Supreme Court for the words "all the then members" is flawed?

In the house, in the Constitution, there are different concepts of majority.
Article 100 says any decision taken by the house is taken by the majority of members present and voting.
Then, so far as the constitutional amendment is concerned, there is a special majority that is the majority of the total membership of the house and 2/3rd of the members present and voting. These are the two conditions that need to be fulfilled when there is a constitutional amendment.
So far as the removal motion of the Speaker is concerned, there it says 'all the then members of the house' which means that the members of the house are without vacancies. So only the members who are there at that time. But that does not mean that you cannot or should not disqualify members.
For example, suppose 20 people have been disqualified, so the total number should be less by twenty who can decide on the removal of the presiding officer.

Arguments against the Nabam Rebia Judgement:

When this Article was framed by the constituent assembly, they had no idea about anti-defection law (which was inserted only in 1985).
Now anybody can move a no-confidence motion just to pre-empt the Speaker from deciding the disqualification petition.
A motion seeking the removal of the Speaker is a "serious" matter and that is why the Constitution itself provides for 14 days after the giving of the notice.
Motions to remove a Presiding Officer have become a ploy to circumvent disqualification proceedings.
The grounds for removal of the presiding officer in such cases are baseless or manufactured.
Some legal experts are critical of the Supreme Court for interfering with the presiding officer's proceedings in violation of the judgment in the Kihoto case.
It helps in loosening the fabric of Indian Parliamentary democracy by being unable to curb unprincipled and unethical political defections.

Conclusion:

Speaker is considered to be a high constitutional authority and he is the custodian of the rights of the house and so nobody should move such a motion just like that and they should not trifle with this procedure. That is why the rule makes it as tough as possible.
When defection is seen as a serious menace by the Constitution, courts should not act in furtherance of it.
The duty to protect those wrongly disqualified is important, but so is calling to account defectors whose motives are suspect.

Source: Live-Law

Mains Question:

Q. How has the Supreme Court’s Nabam Rebia decision of 2016 become a ploy to circumvent disqualification proceedings under anti-defection law?