Thread by @barandbench

#SupremeCourt Bench led by CJI NV Ramana will today hear the plea by Maharashtra CM Eknath Shinde & 14 other #ShivSena MLAs challenging the disqualification proceedings initiated by the Deputy Speaker of the Legislative Assembly.

#Maharashtra #MaharashtraPolitics #EknathSinde

Bench will hear also plea by Uddhav Thackeray-led Shiv Sena group challenging decision of newly-elected speaker recognising the whip nominated by Eknath Shinde faction as Chief Whip of #ShivSena

Read our coverage of the #Maharashtra crisis here: barandbench.com/topic/maharash…

Senior Adv Kapil Sibal: if this case is accepted then every elected govt can be topped.

CJI: What happens after deletion of para 3

Sibal: now there is no recognition of a political party.. Even under para 3 which now stands repealed.. 1/3rd members could orchestrate a split.

#MaharashtraPoliticalCrisis

CJI: Initially I dont want to have a debate and I have some doubts about the deletion of the para. -we will discuss this later

#MaharashtraPolitcalCrisis

Sibal: act of Shiv Sena by voting contrary to the official whip stands in violation of the tenth schedule. Governor could not have sworn in an individual who had sought to separate himself from the party elected by people and thus disqualified under 10th schedule.

Sibal: the very election of speaker by votes of the other faction of the shiv sena is itself foul of the 10th schedule. the basis of this is when disqualified members elects a person, that election is itself void. #MaharashtraPoliticalCrisis

Sibal: we dont need any other material than official documents, all of this is part of the case. we dont have to deal with other allegations. we have to see whether these members are disqualified or not. the records of the assembly has to be called in and see what email was used

Sibal: it has to be seen under what provision are they protected under 10th schedule. what happens to the verdict of the people. the 10th schedule is being used to instigate defection and thus the schedule has been turned into topsy turvy. #MaharashtraPoliticalCrisis

Sibal: the court cannot stay disqualification proceedings under the 10th schedule and this has been held in Kihoto Hollohan. #MaharashtraPoliticalCrisis

Sibal: This is unheard of. its a mockery of the entire democratic structure and democratic governance and that is how elected governments be toppled. #MaharashtraPoliticalCrisis

Sibal: a delay of a single delay will cause havoc to democracy and illegitimate governments cannot continue.

Dr AM Singhvi: please look at the aspect of constitutional sin.

Singhvi: this departing faction of shiv sena, one day before depart to Guwahati send a letter to deputy speaker and seek his removal by email. this email is by an unauthorized email. the deputy speaker takes it seizes it and says it is not on record. #MaharashtraPoliticalCrisis

Singhvi: what is amazing is this letter is now on affidavit by the current speaker of the assembly. you are seeking to use the principle of Nabam Rabia which is not applicable here. You cannot create a non genuine situation #MaharashtraPoliticalCrisis

Singhvi: Your lordships cannot have a swimming pool defined which does not say its capacity to accommodate 10 or 20 people. Here the majority is a contrived majority. 10th schedule was strengthened and not repealed but now they turn the schedule into a Zero

Singhvi: Disqualification on grounds of defection not to apply only in case of merger. Here its a common ground that this shiv sena has not merged with BJP or they call themselves BJP. #MaharashtraPoliticalCrisis

Singhvi: here you have not merged and yet you are voting in floor test. What is the use of the SC judgments when you drive a coach through it and only provide a lip service to them. verdicts from Jharkhand etc where the court sat at night protected the schedule

Singhvi: Just consider I am the deputy speaker suppose I dont take this on record then on what way are we saying that that the speaker is incapacitated. #MaharashtraPoliticalCrisis

Singhvi: Your lordships should uphold the purity of the process and thereby uphold 10th schedule otherwise it will be just a mockery of the institution. #MaharashtraPoliticalCrisis

Sibal: please call for official records from the assembly and decide the matter.

Senior Adv Harish Salve appears for Eknath Shinde: I appear for the so called stingers ! #MaharashtraPoliticalCrisis

Salve: The provision that if you move from the party you will be removed was dropped from the 10th schedule. if there is disaffection within a party and if the leader of the party tells the speaker that you should not be the person, then so what? it can happen.

Salve: in a democracy people may gang up and tell the Prime Minister that sorry you cannot continue and the PM cannot continue.
#MaharashtraPoliticalCrisis

Salve: this court has never interfered in the working of a political party. everything what you have heard is one big rumbled argument. the anti defection law is not self operative and there has to be a petition.

CJI: initially I had some doubts. this is a sensitive case politically and i dont want to give a impression that we are tilted. that is why we are saying thought process. thanks to media #MaharashtraPoliticalCrisis

CJI: once there is no split, then what are the consequences?

Salve: Please take a look at paragraph 2

Salve: The primary basis is : a person belonging to any political party shall be disqualified from being the member of the house, if he has voluntarily gives up membership or if he votes contrary to the whip

Salve: Are we in such a hopeless situation that when a man who cannot find 15 to 20 MLAs within his party has to be brought back by the courts??

CJI: That is not the issue

Salve: para 3 is irrelevant

#MaharashtraPoliticalCrisis

Salve: I have a right in my party democracy to raise my voice. raising voice within party without crossing lakshman rekha is not an act of defection. #shivsena #MaharashtraPoliticalCrisis

Salve: I have no idea how Article 32 comes in picture here. Now it is being told that the court should decide the issue for first time.

CJI: Article 32 applies to both of you. In Karnataka judgment we held HC option had to be exhausted. you both came to this court & got heard

Salve: even Article 226 will not apply here

Sr Adv Salve faces technical glitch

Salve takes court through Sunil Prabhu's petition.

CJI: We can't get all the paper books now, we have the synopsis and prayer portion.

Salve: There's a problem with reading only the prayer. They say speaker's should be quashed because he was unconstitutionally elected.

Salve: Heavens don't fall if a Chief Minister is changed. Let's get into if the speaker was appointed as per law and not on crisis of democracy and all that.

Salve: Let me file a reply to these petitions. Your lordships may have it after a week.

CJI: Time is not an issue but these are important questions.

Salve: After my reply, lot of their assumptions will fall by the way side.

CJI: Has notice been issued in all? Has been some time since first plea filed.

SG: Some are fresh matters.
Salve: Not finding any fault, let me file reply and categorise.

Sibal: they have been ..
Salve: No
Sibal: That let's argue

Salve: I don't know why my friend is being so apprehensive
Sibal: Don't use adjectives for my concerns.

CJI: Item 6 is ...
Sibal: The first matter. But has to be dealt with together.
Singhvi: Have a housekeeping suggestion. Written pleadings may be filed and exchanged.

Singhvi: And heard next week.

CJI: Does minority in party have right to dissolve majority post appointees? These have to be decided.

Salve: We can take letter petition as lead issue.

CJI: Mr Salve please listen. They want to give compilation. [To counsel] You give compilation.

Salve: We shouldn't be told that certain averments are not denied. We'll reply to one petition.

CJI: Material in other writs are also necessary?

Sibal and Singhvi say yes.

SG: There are averments made, they may not say these are not argued against.

Sibal: These may be part of the paper book.

Justice Kohli: We shouldn't have to go back and forth.

Singhvi: Your lordships will have 99% in the compilations.

CJI: Alright, Mr Salve you can file common affidavit. When can ask if you appear?

Salve: Need 3-4 days for reply. Can have it next Friday or on 1st.

CJI: Some of the issues, i feel, will need a larger Bench.

SG: Can i argue on this.

CJI: Reference might be necessary. We can have that if all of you agree on that aspect.

SG: I share concern on sanctity of 10th Schedule. I'm impressed by Dr Singhvi's arguments.

SG cites Rajender Rana to argue that electoral winners win as per ideology not party.

SG: We fought Mr Chitnis throughout, for 20 years. And now you're with them.

Counsel: All of Mr Sibal's concerns are no longer valid. There's a question of maintainability, whether these petitions lie at all now that there's a legally instituted government in Maharashtra.

CJI: Not passing any order. You give the proposition of preliminary objection.

CJI: Give these questions also by Tuesday along with the compilations.

Sibal: Things are proceeding very fast in other forums.

CJI: We're not adjourning. Giving 1 week.

Sibal: re: Salve's argument that Leadership issues cannot be decided in the house.

Sibal: leader of legislature is not let of party.

CJI: Is it your contention that he has to be party president?

Sibal: No. But he can't day he's leader of the party!

CJI says what if a CM does not enjoy confidence of his party despite being leader in legislative assembly.

Sibal: Political party has to take a call. They have to say he does not enjoy our confidence. He happens to be the leader, hasn't become so just like that.

CJI recalls appearing in a similar case in 1995, says how times have changed now.

CJI: Removal of leader of legislature party is in the domain of party MLAs. In case of Dispute or doubt, speaker has to decide.

CJI: Now you're saying that ...

Sibal: They have to convene, pass a resolution and then move the speaker. Not be based somewhere else.

Singhvi: You did not attend common meeting for which a whip was given. There you could have elected new legislative leader.

Sibal: You cannot arrogate to yourself the powers of a political authority.

#ShivSena

Sibal: There's an umbilical link. So your lordships have to decide on these issues.

CJI: Have to address on deletion of names.

#ShivSena #Maharashtra

CJI to Sibal: You appeared in the 5-judge decision ( Nabam Rebia).

Singhvi: Parts of that can be reviewed later.

SG: Facts need to be placed.
Salve: Governor has been made a party. Use of expressions for constitutional posts should be looked into. Can't say sacred cow.

Order: Some issues may need consideration by larger bench. Counsel may submit the issues we need to argue by Wednesday.

Submitted by Sibal that his the lead matter. Respondents to file counter affidavit dealing with the factual allegations in this regard.

Order: Request for sides to prepare 1 common compilation by Thursday. List on Friday.

Salve: May give more time for reply. I'm sorry there are 5 petitions to reply to.

CJI: Alright Monday.
Order: Service of notice in all petitions are effected.

SG: My lords one plea has all rebel MLAs as respondents.

Singhvi says he'll represent all and work out common compilation with other counsel.

CJI: Anyone for the Speaker?

Salve: This is a very serious matter calling for records ...

CJI: Listen to us.
SG asks for it to be on third.

CJI: Let us see, if you have inconvenience inform me.
Sibal: No faction should be hurt.