Thread by @barandbench

[Day 1] #MaharashtraPoliticalCrisis Case

Five-judge Constitution bench to hear a batch of petitions filed by rival factions Uddhav Thackeray and Chief Minister Eknath Shinde in relation to the Maharashtra political crisis

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Sr Adv Harish Salve: on the correctness of Nabam Rebia, this case has been relied on by the petitioner and they said that on the basis of the judgment new speaker should not have decided it. I am not on merits, a judgment they are relying on is the one they are questioning now

Sr Adv Kapil Sibal: working of the 10th schedule has unfortunately worked to advantage political immorality. Nabam Rebia says when notice is issued to speaker seeking his removal that very moment he cannot act as tribunal under 10th schedule #SupremeCourt
#SupremeCourtOfIndia

CJI DY Chandrachud: once notice is given to speaker for his removal he has to stay his hands..that is what you are saying..

Sibal: constitutional authorities cannot be in hiatus at any point of time and cannot pause in any moment of time in history of democracy #SupremeCourt

Sibal: consequence is that he does not only function as a speaker but as a tribunal and this is a device now to ensure that your disqualification petition is not entertained by the speaker and then politics take over.. govt is overthrown.. #SupremeCourt

#SupremeCourtOfIndia

Sibal: That is why I feel that the minority judgment in Kihoto Hollohan was correct.. that is because speaker cannot be unbiased umpire in a game of politics

Justice Narasimha: are you seeking a reference for Hollohan?

Sibal: In my personal belief ..yes it should

Sibal: till the resolution is moved there is no motion against removal of the speaker .. but here 5 judges say that once notice is issued the tribunal of the speaker becomes dysfunctional.

CJI: Let us see Nabam Rebia

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CJI: I am very happy that we are on the same compilation and volume.. but Mr Sibal what are you reading from the paper?

Sibal: I am still learning.. please allow me some hybrid

CJI: If you want another training session we can arrange it.. we can use Article 142 as well (smiles)

Sr Adv Kapil Sibal gives the factual context of the Nabam Rebia judgment.

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CJI: Mr Sibal read from the digital format..

A junior passes an i-Pad to Sr Adv Sibal

Sibal: yes yes I am reading from this

CJI: Mr Solicitor what is sauce for Mr Sibal is also sauce for you. Putting you to notice

SG Mehta: yes yes ofcourse

#SupremeCourt

Sibal: solution will emerge from the facts.

Reads the below para from the Nabam Rebia judgment

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Sibal: Governor said you cannot change the composition of the house. But the speaker disqualified 21 people and deputy speaker declared that to be void

CJI: So the governor fixed the first item in agenda as removal of speaker

Sibal: yes

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Sr Adv Kapil Sibal: Though preponing of session by Governor was also struck down, the politics changed... Nabam Redia took charge as CM for 2 days and then Kaliko Phul defected.. and became the CM.

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Sr Adv Kapil Sibal : 10th schedule has now been used to further political immorality..this very schedule is subverting that, it is being misused. So do you want to uphold Kihoto? Or a new regime has to be placed this needs to be thought

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Justice MR Shah: let us see these observations in the judgment.. there was a resolution...
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Sibal: if the disqualified members are disqualified then there will be no majority. a notice for removal of speaker should only be moved when the house is in session and can prevent all this malpractice that takes place

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Sibal: otherwise govts will toppled at your will. if leave is granted and within 7 days if it is put to vote then nothing like this will happen and 10th schedule can function also.. he vacates seat when resolution is put to vote
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CJI: So you say that even with notice speaker office becomes unworkable when it is a constitutional office.

Sibal: yes there can be no hiatus

CJI: Rules of assembly says how many has to vote

Sibal: 29 members..

SG: 10%. Every assembly will have different threshold

Justice MR Shah: so this notice can be issued even when the assembly is in session

Sibal: yes and that is what is happening.. and this violation of 10th schedule is ex facie proved

CJI: So if 14 day notice is given house may not be in session
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CJI: and if 29 people vote then leave is granted and motion is moved

Sibal: it will be fixed as a item in the house "resolution for removal of speaker".. for 7 days
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CJI: Rule 11 says that 14 day notice has to be given and after expiry of 14 days speaker will say who supports.. so they will rise and 29 members rise then leave is granted and then in 7 days the motion has to be allowed..
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Sibal: Nabam Rebia says speaker stops functioning as a tribunal under 10th schedule as soon as notice is issued.. he can do everything else.
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CJI: once leave is granted the discretion to move the motion is still with the member and he may not move the motion at all

Justice MR Shah: suppose not moved within 7 days..

Sibal: it will lapse

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CJI: Let us look at the Constitution, as Frankfurt said if you are interpreting law there are three principles. read the statute, read the statute and read the statute..

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Sibal: yes everytime something new emerges.. constitution makers said 14 days because they never thought assemblies could be made redundant by not convening for session at all this is a ground reality #SupremeCourt
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CJI: So if you say that it is unconstitutional that you throw baby out of the bath water

Sibal: there is no bath water any long

CJI: There will be no provision for disqualification at all..

Sibal: parliament can do it

CJI: that is an extreme.. #SupremeCourt

CJI: is the scheme of Article 179 or 181 impacted by the 10th schedule...

Sibal: no not at all.. that is our case.

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CJI: just looking at broader constitutional issue what will be the consequence if we dont allow speaker to take action when notice of removal is issued and what will be the consequence if we allow speaker to operate even when leave is granted.. #SupremeCourt
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CJI: What is worrying is if you say speaker can take all action until his disqualification when it is put to vote, the consequence is he can affect his own removal by acting in the motion.... that can have an adverse affect.. #SupremeCourt
#MaharashtraPolitics

CJI: The speaker can affect the course of his own removal. By granting speaker power , are we giving him power to affect course of his own removal?

Sibal: here notice is given. Supreme Court says reply by 12th and government is toppled

CJI: you cannot compel a member to attend the house.. what if they are down with medical complications..

Sibal: you cannot even bring back a person who is no more

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CJI: speaker as an arbiter under 10th schedule has to be impartial
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Justice Shah: what will be the consequence of the disqualification.. what will happen in the interregnum

Sibal: sometimes court sits day to day for Rajasthan and takes years for Goa. It is for courts to decide.. #SupremeCourtOfIndia #SupremeCourt

Sibal: how is 10th schedule derogatory in comparison to what is happening inside the assembly under Article 179.... #SupremeCourtOfIndia #SupremeCourt

CJI: please give us the facts in Nebam Rebia in biullet point format when we resume #SupremeCourt

Sr Adv Sibal: Please look at the decision of Kihoto Hollohan. it has a bearing in this case #SupremeCourtOfIndia #MaharashtraPolitics

Sibal: why will constitutional provisions be interpreted in a manner assuming that speaker will act in a partisan manner. #SupremeCourtOfIndia #MaharashtraPolitics

Sibal: When people who cannot be disqualified are disqualified they can come back through judicial review. Elected governments cannot be allowed to be toppled. #SupremeCourtOfIndia #MaharashtraPolitics

CJI: so are you saying we should construe Nabam Rebia and not refer? But again that leads to uncertainty as judgment is from two benches of equal strength.

Sibal: That also can be an option if you say that it is not binding. #SupremeCourtOfIndia #SupremeCourt

Sibal: now first removal of speaker will be decided and then the 10th schedule.

CJI: So disqualified members were allowed to vote in the floor test and then the govt fell

Sibal : yes it was toppled
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CJI: we do not have to enter the facts right now

Sibal: record speaks for themselves.. I don't have to say anything

Sibal: the basis of all this is Nabam Rebia and that is why I seek an authoritative pronouncement.

CJI: Yes the correctness.. thank you

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Sr Adv AM Singhvi: Nebam Rebia has not considered how 10th schedule is rendered to a nullity. #SupremeCourtOfIndia #MaharashtraPolitics

Singhvi: Please refer to the Rajender Singh Rana, Constitution bench judgment. #SupremeCourtOfIndia #MaharashtraPolitics

Singhvi: Nabam Rebia says mere notice disables the speaker and this sanctifies and legalises it to disable the speaker who has no standing and now 10th schedule is frozen

Singhvi: if you paralyse the 10th schedule it will have effect on other provisions of the Constitution as well. #SupremeCourtOfIndia #MaharashtraPolitics

Singhvi: Now on the wider question: what harm can be caused by not disabling the speaker: bear in mind. If in any case speaker removal can be put to. Vote only after 7 days. So how much harm can be done in 7 days..

Devadatt Kamat, Senior Advocate : please see para 119 of the judgment... the constitution bench should have maintained difference between notice and ultimate resolution. #ShivSenaCrisis #SupremeCourt #SupremeCourtofIndia

Devadatt Kamat, Senior Advocate : doctrine of necessity will apply in this case which was not applied in Nabam Rebia. #ShivSenaCrisis #SupremeCourt #SupremeCourtofIndia

Sr Adv Harish Salve: I will use the i-pad and will take not more than 20 minutes tomorrow. #ShivSenaCrisis #SupremeCourt #SupremeCourtofIndia