Article 179 stipulates that a Speaker (or a Deputy Speaker) may be removed from their office by a resolution passed by a majority of “all the then members of the Assembly.” Article 179 of the Constitution reads as follows:
“179. A member holding office as Speaker or Deputy Speaker of an Assembly—
…
(c) may be removed from his office by a resolution of the Assembly passed by a majority of all the then members of the Assembly:
Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days’ notice has been given of the intention to move the resolution:
Provided further that, whenever the Assembly is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the Assembly after the dissolution.”
The Nabam Rebia Case
In Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1, the INC formed the government in Arunachal Pradesh under the leadership of Mr. Nabam Tuki. Mr. Nabam Rebia was elected as the Speaker of the Arunachal Pradesh Legislative Assembly.
In October 2015, a section of the MLAs of the INC formed a separate group and opposed the leadership of the Chief Minister. Twenty MLAs of the INC along with two independent MLAs wrote to the Governor claiming that the Chief Minister has lost the trust and confidence of the House. Later, certain MLAs from the opposition parties issued a notice of intention to move a resolution for the removal of the Speaker of the Assembly under Article 179(c) of the Constitution. Thereafter, the Chief Whip of the Congress Legislature Party filed disqualification petitions under Paragraph 2(1)(a) of the Tenth Schedule against fourteen MLAs of the INC for breaching party directions. The Speaker then issued notices in the disqualification petitions to the MLAs.
On 9 December 2015, the Governor issued an order advancing the session of the Assembly originally scheduled to be held on 14 January 2016 to 16 December 2015. On the same day, the Governor also issued a message under Article 175(2). In the message, he fixed the resolution for the removal of the Speaker as the first item on the agenda of the House and tasked the Deputy Speaker with conducting the proceedings of the House. The Governor also directed that the Presiding Officer shall not alter the party composition in the House till the session was prorogued. On 17 December 2015, the Government headed by the Chief Minister Mr. Nabam Tuki was declared to have lost the confidence of the House.
It was in this context that Nabam Rebia (supra) came to be decided. A Constitution Bench of Supreme Court in that case (speaking through the majority opinion authored by Khehar, J. and the concurring opinion by Misra, J., as the learned Chief Justices then were) inter alia ruled that it was impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule after a notice of intention to move a resolution for their removal from the office of the Speaker was issued.
Reasoning of Justice Kehar
Khehar, J. grounded his opinion on constitutional and moral reasoning. The learned Judge observed that when the position of the Speaker is under challenge, it would “seem” just and proper for the Speaker to establish their right to continue before adjudicating on the disqualification petition(s) pending before them:
“189. When the position of a Speaker is under challenge, through a notice of resolution for his removal, it would “seem” just and appropriate, that the Speaker first demonstrates his right to continue as such, by winning support of the majority in the State Legislature. The action of the Speaker in continuing, with one or more disqualification petitions under the Tenth Schedule, whilst a notice of resolution for his own removal, from the Office of the Speaker is pending, would “appear” to be unfair. Why would a Speaker who is confident of his majority, fear a floor test?
After his position as the Speaker is affirmed, he would assuredly and with conviction, deal with the disqualification petitions, under the Tenth Schedule. And, why should a Speaker who is not confident of facing a motion, for his removal, have the right to adjudicate upon disqualification petitions, under the Tenth Schedule? The manner in which the matter has been examined hereinabove, is on ethical considerations. A constitutional issue, however, must have a constitutional answer. We shall endeavour to deal with the constitutional connotation of the instant issue, in the following paragraphs.”
Khehar, J. referred to the Constituent Assembly Debates to elucidate the meaning of the phrase “all the then members of the Assembly” as it appears in Article 179(c) (draft Article 158). In the course of the debates in the Constituent Assembly, Mr. Mohd. Tahir proposed to substitute the phrase “all the then members of the Assembly” with the phrase “the members of the Assembly present and voting”. However, the proposed amendment was negatived. Justice Khehar observed that the Constituent Assembly Debates do not appear to have recorded any discussion on this proposed amendment.
Khehar, J. noted that this meant that the members of the Constituent Assembly used the phrase to indicate definiteness and that any change in the composition of the Assembly when the notice of intention to move a resolution for the removal of the Speaker was pending would conflict with the express mandate of Article 179(c):
“191. […] We are satisfied 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.”
The opinion of the majority further noted that the purpose sought to be achieved through the Tenth Schedule is clear and unambiguous, and that it is distinct from the purpose sought to be achieved by Article 179(c):
“192. The purpose sought to be achieved through the Tenth Schedule, is clear and unambiguous. The same is unrelated to, and distinct from, the purpose sought to be achieved through Article 179(c). Neither of the above provisions, can be seen as conflicting with the other. Both, must, therefore, freely operate within their individual constitutional space. Each of them will have to be interpreted, in a manner as would serve the object sought to be achieved, without treading into the constitutional expanse of the other. The interpretation would have to be such, as would maintain constitutional purpose and harmony.”
Khehar, J. observed that if the Speaker decided a disqualification petition before surviving the vote, it would prejudice the MLAs facing disqualification but not the Speaker. The disqualified MLAs would not have a right to participate in the motion moved against the Speaker even if the order of disqualification was set aside. They would, in his view, have been effectively deprived of the opportunity to participate in the motion against the Speaker. However, the MLAs would not lose their right to participate if the disqualification petition was taken up after the motion against the Speaker was put to vote.
Reasoning of Justice Misra
Referring to the first proviso to Article 179, Misra, J. observed that the Speaker would gain an advantage if they were allowed to change the composition of the Assembly by adjudicating the disqualification petitions in the fourteen days when the notice was pending. This, he observed, would result in a constitutional conflict between the role of the Speaker as the presiding member of the Assembly and the role of the Speaker as a Tribunal under the Tenth Schedule.
Misra, J. also referred to the amendment to Article 179(c) (draft Article 158) that was negatived by the Constituent Assembly, to reach the same conclusion as Khehar, J. Article 181(2) of the Constitution provides that the Speaker shall have the right to speak in and take part in the proceedings of the Legislative Assembly while a resolution for their removal from office is under consideration but shall not be entitled to vote in case of an equality of votes.
The learned Judge held that the requirement under Article 181(2) when contradistinguished with Article 189 restricts the power of the Speaker to participate in the proceedings seeking their removal since the Speaker has been given the power to vote in the event of an equality of votes under the latter provision. This constitutional design indicated, in the view of the Judge, that the Speaker cannot be given the power to interfere with the resolution for their removal.
Reasoning of Justice Madan Lokur
Madan Lokur, J. held that the Court was not called upon to decide this issue:
“401. In the view that I have taken, I am of the opinion that the view expressed by my learned Brothers relating to the power or propriety of the Speaker taking a decision under the Tenth Schedule of the Constitution with regard to the fourteen Members of the Legislative Assembly does not at all arise in these appeals.”
Supreme Court’s recent view on Nabam Rebia Judgement
The Supreme Court in Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023), has taken the following views on Nebam Rebia Case-
“Based on the submissions which have been canvassed before us, we are of the view that the decision in Nabam Rebia (supra) merits reference to a larger Bench because a substantial question of law remains to be settled. The following are our prima facie reasons for reaching this conclusion:
a. Nabam Rebia (supra) is in conflict with the judgement in Kihoto Hollohan (supra) because the decision in Kihoto Hollohan v Zachillu (1992) holds that there is no reason to doubt the independence and impartiality of the Speaker when adjudicating on proceedings under the Tenth Schedule. In contrast, in Nabam Rebia (supra), Supreme Court doubted the ability of the Speaker to remain neutral while deciding disqualification petitions after a notice of intention to move a resolution for the removal of the Speaker has been issued.
b. In Nabam Rebia (supra), Supreme Court referred to the Constituent Assembly Debates to interpret the phrase “all the then members” in Article 179(c). Supreme Court noticed the amendment moved by Mr. Mohd Tahir, proposing that the term “all the then members of the Assembly” in Article 179(c) (draft Article 158(c)) be replaced with the term “all the members of the Assembly present and voting.”
In Nabam Rebia (supra), Supreme Court noticed that this proposal was rejected and observed that the “Constituent Assembly Debates do not appear to have recorded any discussion on the above amendment.” It was inter alia on this basis that Supreme Court held that the phrase “all the then members of the Assembly” meant that the composition of the Assembly ought not to be changed after the notice of intention to move a resolution for the removal of the Speaker (or the Deputy Speaker) was issued.
However, the members of the Constituent Assembly discussed the import of the phrase “all the then members” occurring in other provisions of the Constitution. Dr. BR Ambedkar clarified that the phrase “all the then members” has been used to indicate all members who are members of Parliament and whose seats are not vacant, and it does not mean members sitting or present and voting. Supreme Court appears not to have noticed the entirety of the discussion in the Constituent Assembly regarding the phrase “all the then members” while using the Constituent Assembly Debates as an internal aid of interpretation; c. Article 181 of the Constitution provides that the Speaker shall not preside over a sitting of the Legislative Assembly while a resolution for their removal is under consideration. It appears that the majority in Nabam Rebia (supra) did not consider the effect and import of Article 181, and whether the Constitution envisages the imposition of any restriction on the functions of the Speaker beyond the limited restriction imposed by Article 181;
d. The second proviso to Article 179 provides that whenever the Assembly is dissolved, the Speaker shall not vacate their office until immediately before the first meeting of the Assembly after the dissolution. Supreme Court did not consider if the Constitution envisages a restriction on the continuous performance of the functions of the Speaker under the Tenth Schedule in view of this provision;
e. Rule 11 of the Maharashtra Legislative Assembly Rules stipulates that upon the expiry of the period of fourteen days provided under the proviso to Article 178, leave is granted to move the motion only when twenty-nine members vote in favour of it. Supreme Court did not consider the possibility that a notice of intention to move a resolution for the removal of the Speaker may not culminate in such a motion being moved. The Speaker may be effectively barred from adjudicating disqualification petitions based on the mere issuance of a notice of intention to move a resolution by one member of the House;
f. It appears that the following aspects were not considered in Nabam Rebia (supra):
i. Whether the temporary disablement of the functions of the Speaker under the Tenth Schedule is prone to misuse by MLAs who anticipate that disqualification petitions will be instituted against them or by MLAs against whom disqualification petitions have already been instituted; and
ii. Whether a “constitutional hiatus” in the operation of the Tenth Schedule ensues because of the temporary disablement of the Speaker.
To give quietus to the issue, we refer the following question (and any allied issues which may arise) to a larger Bench: whether the issuance of a notice of intention to move a resolution for the removal of the Speaker restrains them from adjudicating disqualification petitions under the Tenth Schedule of the Constitution. The matter may be placed before the Chief Justice for appropriate orders. We accordingly answer the question referred to us as noted in Paragraph 32(a) of this judgment.
72. Pending the decision of the larger Bench, as an interim measure, adoption of the following procedure may subserve the objective of the Tenth Schedule, Symbols Order as well as Article 179(c). It may also provide some amount of clarity and certainty.
a. The investiture of exclusive adjudicatory jurisdiction upon the Speaker to determine the complaints under the Tenth Schedule will entitle the Speaker to rule upon and decide applications questioning their jurisdiction; and
b. (i) The Speaker is entitled to rule on applications which require them to refrain from adjudicating proceedings under the Tenth Schedule on the ground of initiation of a motion for their removal under Article 179(c). A Speaker can examine if the application is bonafide or intended only to evade adjudication;
(ii) If the Speaker believes that the motion is well founded, they may adjourn the proceedings under the Tenth Schedule till the decision for their removal is concluded. On the other hand, if they believe that the motion is not as per the procedure contemplated under the Constitution, read with the relevant rules, they are entitled to reject the plea and proceed with the hearing; and
(iii) The decision of the Speaker, either to adjourn the proceedings under the Tenth Schedule in view of the pending proceedings under Article 179(c) or to proceed with the hearing will be subject to judicial review. As the decision of the Speaker relates to their jurisdiction, the bar of a qua timet action, as contemplated in Kihoto Hollohan (supra) will not apply.”
Reference
Subhash Ghai v. Principal Secretary, Governor of Maharashtra (2023)