Thread by @lawbarandbench

#BombayHighCourt is hearing petitions filed challenging the procedure of election of the Speaker and Deputy Speaker of the Maharashtra Legislative Assembly.

@CMOMaharashtra

Advocate General Ashutosh Kumbhakoni apprises the High Court on the existing procedure for electing speaker.

Bench of Chief Justice Dipankar Datta and MS Karnik hearing the two petitions.

Kumbhakoni: Rules have been framed as per Article 208..

Court: What is the procedure?

Sr Adv Mahesh Jethmalani: There is a Rules Committee which includes the members of the legislative assembly.

Court: who decides which members are in the Rules Committee?

Jethmalani: The speaker..

AG: My first submission is that the PiL is not maintainable.
At an earlier point of time, MLA has already filed a petition, than this PIL, hence the PIL by Vyas are not maintainable.

AG: the grounds of the PiL also point out how the rights of the opposition parties are getting affected.. if they are aggreieved then they will come to Court.

AG: In the grounds of the petitioner, what petitioner states is secrecy of votes. In my humble opinion, those are related to direct election where a member of general public elect directly.

AG: The elector casts a vote in the speaker election, so it is choosing and not so much as elect.

AG: The second petition is filed on March 3, and this second petition was filed after the order directing payment of ₹2 lakhs. What I meant was he should file regular writ and not as PIL.

Court: You are saying second petition triggered after first petition order of deposit was given?

AG: Yes.

AG: You know who has issued the notification - the principal secretary of legislative assembly. But the petitioner has annexed the home secretary. This is case of mis-rejoinder.

Court: There is non-joinder also…

AG: Yes.

AG: The petitions are similar. The second PIL needs to be dismissed with heavy costs. ₹2 lakhs is too less, this is abuse of PiL jurisdiction. What prevented him from filing in so many words to go before regular court when milords said in so many words. Please don’t tolerate.

AG: The copy-paste shows both are hand in gloves.

#BombayHighCourt

Court: Mr Jethmalani, we will hear you only after you deposit ₹10 lakhs in Court.

In the meantime we hear Dr. Chandrachud for Janak Vyas.

Chandrachud: If there is irregularity then court may not intervene but in case of un-constitutionality..

Court: You show us the public interest in this..

Chandrachud: if there is unconsitutionality that concerns procedure then the court can take action under article 212.

Chandrachud: for electing the speaker on recommendation of speaker.. in no other states have we seen this that the CM alone decides when the election takes place.
The ministry of parliamentary affairs makes recommendation to the President who decides the date.

Chandrachud: one person cannot act by himself of herself without aid and advice of council of ministers.
The one individual cannot have the sole authority.

Court: In any given case does Constitution bar CM from giving advice without aid and advice of ministers?

Chandrachud: as per article 163 yes. Under 164 maybe for the cabinet ministers but 163 clarifies that governor will act under aid and advise of council of ministers.

Court: But this is for executive business. How can this be extended to the legislative business? Show us how can you apply article 164 to the legislature.

Court: qua legislature governor’s powers are circumscribed. Article 178 is for legislature. How does governor come here? Does chapter 3 require governor to choose speaker and deputy speaker?

Court: Why should we read something to denude the CM of his powers? And we want response on the preliminary objections raised.

Court: The notification is of December 30, 2021 on the amendment.
The proposed election is of March 9. How can you be so casual about the challenging this notification?

Court: December to February is not long time, but why should that time not be included? Why come just 10 days prior?

Court: The principal secretary is also not made a party..

Chandrachud asks for time to implead..

Court: Why should we permit you to implead now? That is the primary objection.
We have to respect our other wing. We cannot keep interfering in the functions of the legislature.

Court: Petitions should be filed to serve public interest. Who are you? How is the election of speaker in public interest? If it is personal liberty, lives are being lost, then yes, we will intervene.

Court: Why this political battle in High Court! We know who you are and who put you up to this.

Court: Jethmalani’s client was sitting on the fence for so long. Then he saw reports in news and social media, and he came to Court.

Jethmalani tries to clarify..

Court: We will hear you only after you deposit.

Order: We have heard Kumbhakoni who raised objections to the maintainability of the PIL.
The petitioner is a sitting MLA and he has approached the Court at the 11th hour…

Order: which raises suspicion on the bonafides of the petitioner and hence we direct him to deposit ₹10 lakhs.