Thread by @barandbench

Constitution Bench headed by Justice DY Chandrachud to hear the #MaharashtraPoliticalCrisis matter between Eknath Shinde and Uddhav Thackeray

Bench will first hear whether EC can continue hearing proceedings to decide who would control party symbol, party name and identity

Sr Adv Kapil Sibal: How can the hearing proceed if this application is not decided now..

Sr Adv NK Kaul: this applications is about how EC is stonewalled from proceeding in the matter and has no connection with the main matter which larger domain of exercise powers by speaker

Kaul: disqualification of a member of a political party has no relation to the election symbol proceedings before the election commission. Such disqualified ones are even allowed to vote #MaharashtraPolitics

Justice Chandrachud: Please lay down the case and let us decide if the matter needs to be heard at length or the IA can be decided today

@AamAadmiParty @LtGovDelhi #SupremeCourt

Sibal: This all started on June 20 when a shiv sena MLA lost a seat, a legislative party meeting was called. Then some of then went to Gujarat and then Guwahati. They were called to attend and once they did not attend they were removed from post in the legislative assembly

Sibal: Then they said we do not recognise you as leader of party and new whip was appointed. Then it was known that they wanted to form separate government with the BJP. On June 29 this court passed an order saying having given due consideration vidhan sabha should proceed

Sibal: it added that there shall be a trust vote on June 30 subject to the outcome of proceedings before this court. That means office of CM and assembly proceedings are subject to decision of this court. On July 19 Ekanth Shinde alone approached election commissioner

SC: Did he move in the capacity as a legislator or as a member of the party?

Sibal: he moved as a legislator

Justice MR Shah: but he can only move as member of party

Sibal: there are different layers as held in Sadiq Ali.

@AamAadmiParty @LtGovDelhi #SupremeCourt

Justice Chandrachud: you say June 29 order trust vote was not stayed but it was subject to court order and thus CM office and assembly proceeding is under the cloud and that approaching EC would fail if the decision is against them

@AamAadmiParty @LtGovDelhi #SupremeCourt

Sibal: But they continue to be member of the original political party as per the 10th schedule..

Justice PS Narasimha: as legislators not members..

@AamAadmiParty @LtGovDelhi #SupremeCourt

Sibal: if you say you are separate faction but you continue to be a part of original political party then you give up the membership of the party
@AamAadmiParty @LtGovDelhi #SupremeCourt

Justice Chandrachud: the other side say there are 1.5 lakh affidavits showing that they are the original faction what is the ambit and jurisdiction of speaker to take such evidence and what is the ambit here of the election commission @AamAadmiParty @LtGovDelhi #SupremeCourt

Sr Adv Sibal reads the definition of legislature party
#MaharashtraPolitics

Justice Narasimha; if there is disciplinary against member of a political party and the party expels him what is the bearing of that on his presence in the house. this court had held he sits as an mla but an unattached member #MaharashtraPolitics

Justice MR Shah: question is how disqualification would impact the symbols etc.

Sibal: any govt can be thrown out and they have their own speaker who will not decide on the disqualification.

Justice Chandrachud: now let us see the scope of the powers of election commission

Sibal: The whip says you have to vote for this candidate, they vote for a BJP candidate. All this happens after June 29 which is subject matter of decision of this court. They represent the will of the people

Sibal: How can they say there are different faction. Those who vote in contrary can be condoned by the political party which shows political party is in control. They are representatives of that party, they are not independent. Next is disqualification

Sibal: there they have a remedy under the 10th schedule.

Sibal: without any reference to what happened in the house they go to the election commission. #MaharashtraPolitics

Sibal: Para 15 will operate only when both are members of the party. Where is the question of para 15 operating in this case at all. Suppose a person has been thrown out he cannot move the EC and that is a decision of a constitutional authority #MaharashtraPolitics

Sibal: we are here only because of a prima facie case before the constitution bench. now the balance of convenience as EC has not heard the matter and it is pending, BMC elections are also under stay

Kaul: there is no stay at all.

Sibal: matter is coming tomorrow

Sibal: Do not allow the election to go on and it would only cause irreparable injury. If the election commission proceeds look at the injury which will be caused

Dr AM Singhvi begins submissions #MaharashtraPolitics

Singhvi: today court is deciding the correct balance of convenience. proceedings are in direct collision and inextricably intertwined. among elements of anti defection rule: split group or faction are out. They are permanently out. if EC is allowed then see how unreal it will be

Singhvi: I ask myself how does election commission maintain the sanctity of the process if it does not have the real party member before them. you have to ask who are you... this is putting cart before the horse and why attempt is being made to make it irreversible

Singhvi: you leave Shiv Sena but you do not want to leave the goodwill of shiv sena so you claim to be the real shiv sena which is just not allowed. you cannot have best of both worlds. #MaharashtraPolitics

DYC J: 10th schedule yes does not recognise a split but the symbols order does not recognise it? your contention is that since legislative wing of party is under cloud therefore EC proceedings should be prevented on part of non legislative arena

Justice Chandrachud: Can the EC proceed on this demurrer that these 40 persons are not part of the party anymore?

Singhvi: symbols order is not premised on disqualification but on dispute like I want it and you want it. It was premised on legislative wing.

Justice Chandrachud: okay let us wrap up this side
#MaharashtraPolitics

Singhvi: please remember voluntarily gives up phrase. how do you voluntarily give up. you do that when you don't satisfy the conditions of the tenth schedule. when it is given up how will para 15 apply before the election commission #MaharashtraPolitics

Bench takes a short break #MaharashtraPolitics

bench resumes hearing #MaharashtraPolitics

Sr Adv NK Kaul for Eknath Shinde: round 3rd week of June a hopeless minority of MLAs within shiv sena decided to remove Mr Shinde though they did not have the majority. June 29 court had granted time till July 12 to file our replies.

Kaul: a writ was filed by Mr Prabhu who was illegally appointed by minority MLAs. he was removed on June 21. mr Prabhu said no floor test should be held in view of the fact that disqualification against 42 MLAs were pending. #MaharashtraPolitics

Kaul: there are categorical pleadings in the writ that who is the shiv sena lies in the domain of election commission.

Justice Hima Kohli: where is the averment that it lies within EC domain?

Kaul points to a para in the common compilation. #MaharashtraPolitics

Kaul: we are not saying we have voluntarily given up membership. it is factually incorrect to say that there was an injunction on EC or parties understood that ec will not proceed.

Kaul: law is laid out in this regard. court has held that jurisdiction of speaker under 10th schedule is to exercise power to determine disqualification of a member and speaker cannot decide split or merger within a political party #MaharashtraPolitics

Justice Chandrachud: whole concept of split is alien to the 10th schedule. Merger is expressly a defence under 10th schedule.

Kaul: EC is well within its right to deal with any situation that may arise. that is not to say that under symbols order EC does not have the jurisdiction. #MaharashtraPolitics

Justice Chandrachud: Genesis of the entire dispute arises from what happens in the floor of the house. absent what happens everything else would not have taken place.

Justice Chandrachud: symbol order predates that contention. does the fact that determination of whether or not disqualification is on speaker denude the authority of the speaker

SC: Does the person who is disqualified approaches the EC, does that impact his locus?
#MaharashtraPolitics

Justice Narasimha reads a letter from Uddhav Thackeray to Eknath Shinde stating why he is being removed from the party

Kaul: We are an overwhelming number within the party. this will be decided by the Speaker or will the other faction decide if it was given up voluntarily

Justice MR Shah: you are saying powers of speaker and EC are different?

Kaul: whatever EC decides will not impact a member approaching the election commission. Thus this application is not intertwined with the main matter at all

Kaul: symbol is not the property of a MLA and has to be decided by the election commission. You are trying to interdict the powers of EC under article 32 petition. #MaharashtraPolitics

#MaharashtraPolitics matter to resume at 2 pm

Sr Adv Kaul: my right to go to EC as a primary member will not be taken away. The other faction does not even have the majority of members. #MaharashtraPolitics

Kaul: In one of the judgments I cite, SC also holds the election commission had exclusive jurisdiction to try these cases. In Sadik Ali case it was held that any dispute within the party the entire jurisdiction is with the election commission of India #MaharashtraPolitics

Kaul: a political party cannot be picked up in isolation and it is the legislative party. This court held that a faction of the judicial power of State is vested in ECI and it has the exclusive jurisdiction to decide the same. #MaharashtraPolitics

Sr Adv Maninder Singh: There was a resignation by the then CM @OfficeofUT before the floor test. That alone was conclusive evidence of losing the confidence of the house and that he did not have the majority. Singh reads the definition of a political party under RP Act

Singh: the other side have filed writ petitions after writ petitions. they have raised the question which is the real shiv sena, and that is the domain of the election commission. #MaharashtraPolitics

Sr Adv Jethmalani: disqualification under 10th Schedule is governed by a mandatory procedure and there is no concept of deemed disqualification. It has to be actual disqualification. the other party is basing their case on disqualification that has never happened.

Jethmalani: when CM resigned the governor had to see if he can find a stable majority. #MaharashtraPolitics

Jethmalani: when there is a question on disqualification then it is the speaker decides., there is no deemed disqualification. #supremecourt #MaharashtraPolitics

SG Mehta appears for the governor: only question for today is when Article 324 was framed there was a beautiful description. Dr Ambedkar examined the scope that when certain constitutional questions are to be decided relating to elections, it was the election commission who could

SG: This is a political question and it is not the first time that such a split has happened and to decide which faction is the real party. It is the election commission which is equipped to look into this. #MaharashtraPolitics

SG: EC is only deciding which faction is real party and thus EC should be allowed to proceed. #MaharashtraPolitics

Sr Adv Datar for Election Commission: EC works independent and very differently than the speaker.under representation of peoples act, disqualification is with recommendation of the ECI and it is not governed by 10th schedule at all. #MaharashtraPolitics

Datar: we generally avoid parallel proceedings when jurisdictions are concurring. #MaharashtraPolitics

Datar: Election commission is free to decide who constitutes this aspect of majority.

SC: Bench: Yes, Clause 2(1)(a) and 2(1)(b) of the 10th Schedule) is member specific, but para 15 deals with faction, refers to a collective group which means the party.

Datar: by submitting this application to the Election commission, there was no violation of the 10th schedule. #MaharashtraPolitics

Sr Adv Kapil Sibal: acts like voluntarily giving up membership etc does not happen on floor of house but send notices from Gujarat or Guwahati. all this is outside the house. speaker has to consider giving up membership of party and not the house.

Sibal: Once you go against the Whip you would be disqualified under Section 2(1)(a) and when you vote in contrary to the Whip you are saying I am not a member of your party because I am not bound by the whip. so this is giving up membership of the party.

Sibal: EC is trying to determine the status of political party as on July 19 but what happened before will totally be ignored when they gave up membership of the political party. #MaharashtraPolitics

Sibal: only defence available here is the merger. i am saying Shinde is no longer in the party and membership has been given up. How does the EC hear him then? What election commission is saying that I do not care what is happening as 10th schedule I will assume as party member

Sibal: who decides the plenary power of the election commission?para 15 pre-supposes legitimacy in the concept of membership of the party. para 15 does not allow EC to disregard what happened under the 10th schedule. #MaharashtraPolitics

Singhvi: what happened in surat, assam cannot be erased and it is in complete contradiction to para 15.

Kaul: There is an attempt here to transfer all the proceedings to the speaker instead of EC and that cannot be done

#MaharashtraPolitics

SC: we direct there shall be no stay on proceedings before the election commission. IA seeking stay stands DISMISSED

#MaharashtraPolitics