Rebia resigned on Tuesday to facilitate an impartial conduct of the floor test by Congress Chief Minister Pema Khandu.
Telling the bench of Justice Dipak Misra and Justice Rohinton Fali Nariman that the plea seeking recall of this part of the Constitution bench judgement was moved on Wednesday, senior counsel Kapil Sibal told the court that it would amount to putting the political process over the constitutional power of the Speaker under the Tenth Schedule, which provides for disqualification of lawmakers due to defection.
Addressing the court, senior counsel Abhishek Manu Singhvi told the court that the position enunciated by the Constitution bench amounted to permitting a "constitutional sin (of defection) and a constitutional sinner (defector) to take advantage of his own wrong (of violating the Tenth Schedule providing disqualification of a legislator on grounds of defection)."
The bench was told this in the course of the hearing of a plea by the disqualified members of the Uttarakhand assembly seeking direction that they may be allowed to participate in the assembly session starting from Thursday.
The three judges -- Justice Jagdish Singh Khehar, Justice Pinaki Chandra Ghosh and Justice N.V. Ramana -- of the five-judge Constitution Bench and Justice Dipak Misra in his separate but concurring judgement held that so long the notice of resolution for the removal of Speaker was pending he would not act under the Tenth Schedule and disqualify lawmakers under the anti-defection law.
The Constitution Bench judgement was pronounced on July 13, 2016.
The Constitution Bench held that it was "constitutionally impermissible for a Speaker to adjudicate upon disqualification petitions" as it referred to Article 179(C) which said that the Speaker (or Deputy Speaker) may be removed by a resolution passed by the majority of "all the then members of the Assembly".
The Constitution Bench said that any disqualification of lawmakers after motion for the removal of Speaker has been initiated would negate the effect of the words "all the then members in Article 179 (C)".
To buttress their conclusion, the Constitution Bench referred to the June 6, 1949 constituent assembly debates where suggestion to substitute "all the then members of the Assembly" with "the members of the Assembly present and voting" was not accepted.
Sibal today told the court that during constituent assembly debates held on December 29, 1948, Dr. Ambedkar had already clarified that words "all the then members of the Assembly" meant "all the members whose seats are not vacant" and the same could not be read to interdict the Speaker from exercising his powers under anti-defection law under tenth schedule of the constitution.
The court was told that the word "all the then members" was present in Article 67, 90, 94, 179 and 183 of the constitution.
The plea for the recall of the observation clamping on the power of the Speaker under Tenth schedule has contended that as explained by the Constituent Assembly the word "the then' is relatable to the composition of the House at the time of voting on the resolution for the removal Speaker and not merely to the Members who are present and voting.
Describing the observations by the Constitution Bench prohibiting the Speaker to act under the anti-defection law after motion for his removal has been moved as being against the "constitutional scheme envisaged by the founding fathers of the constitution", the Arunachal Pradesh assembly Speaker has said that it has created a "Constitutional hiatus/vacuum for adjudication of Tenth Schedule matters".
The said observations, the review plea says have the "effect of effacing or at least delaying the adjudication of the 'constitutional sin' of defection under the Tenth Schedule.
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