Thread by @barandbench

[Day 2] #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

#SupremeCourt @OfficeofUT #SupremeCourtOfIndia

Sr Adv Harish Salve: I am using the i-pad. I am opposing the reference. This was an anti defection law and not anti dissent law. From the time of Mr Palkhiwala it was contended that it becomes an anti dissent law #SupremeCourt @OfficeofUT #SupremeCourtOfIndia

Salve: Unless the court comes to a startling conclusion that the notice pending before the speaker is transferred to Supreme Court under Article 142 or members get disqualified as soon a plea for disqualification is filed #SupremeCourt @OfficeofUT #SupremeCourtOfIndia

Salve: On Nabam Rebia these are delicate Constitutional issues which arises on case to case basis and dealt with. Does such issues arise here and the answer is a resounding NO. #SupremeCourt @OfficeofUT #SupremeCourtOfIndia

Salve: this is a journey which has no destination

#SupremeCourt @OfficeofUT #SupremeCourtOfIndia #ShivSenaCrisis

Salve: The only petition in which Nabam Rebia is a live issue is a petition settled by Mr Kamath, who realised his folly and said that Nabam Rebia should be reversed

#SupremeCourt @OfficeofUT #SupremeCourtOfIndia #ShivSenaCrisis

Salve: This is a wrestling which going on for leader of opposing party. Some members received notice for disqualification by June 25 and no time for reply.. this is against the rules...the speaker was rushing

#SupremeCourt @OfficeofUT #SupremeCourtOfIndia #ShivSenaCrisis

Salve: On June 28, former CM Uddhav Thackeray was asked to prove his floor majority. On June 29 Mr Sunil Prabhu moves this court asking stay of this session. SC declines it and Mr Thackeray resigns.

#SupremeCourt @OfficeofUT #SupremeCourtOfIndia #ShivSenaCrisis

CJI: So scenario was by SC order of June 27 the deadline for disqualification notice was extended to July 11 and floor test was by June 30 so that floor test is without speaker deciding the disqualification petitions

#SupremeCourt #SupremeCourtOfIndia #ShivSenaCrisis

CJI DY Chandrachud: So according to you it wouldn't have made a difference even if there had to be a meeting?

Salve: Factually, there were 22 more to be disqualified. Petition was filed for 22 here. If CM resigns and no trust vote what would have happened

#SupremeCourt

Salve: One thing is clear, Nabam Rebia is academic. With disqualification pending, on June 30, Eknath Shinde shows a list showing majority to the governor. He is made a CM. On July 4 floor test was ordered. in meanwhile there was no speaker
#SupremeCourt #ShivSenaCrisis

CJI: actually it all boils down to this that they (Uddhav Thackeray faction) did not face the trust vote and that there were 16 disqualification petitions and events were overtaken later on

Salve: Yes milord.
#SupremeCourt #ShivSenaCrisis

CJI: ultimately two judicial orders seal the fate. One is June 27 order where deadline for reply to disqualification plea was extended to July 12 and then when they came back to challenge trust vote... this court declined.
#SupremeCourt #ShivSenaCrisis

CJI: The UT faction knew that without decision on disqualification petition the fate of the trust vote was sealed

Salve: No the disqualification plea was of 16 members and they had 58 which was majority. Gap between BJP and MVA.. First UT resigns and then Shinde became CM

Salve: Mr Sibal's voice is audible as his mic is open.. i can hear what he is telling his junior

Sibal: I am not revealing a state secret !

Salve: Until now.

CJI: He is only cautioning now

#SupremeCourt #ShivSenaCrisis

Salve: Nabam Rebia had no role to play in the events that transpired, No court relied on this. but now this court has to decide on reference. we understand if the case went to Bombay HC and HC relied on Nabam Rebia..
#SupremeCourt #ShivSenaCrisis

Salve: anti defection law is not a weapon for a leader who has lost faith.. there are layers of political morality in all of this and it is best your lordships stay away from all of this, these are complex questions
#SupremeCourt #ShivSenaCrisis

CJI: It is not academic.. if there was no communication from the governor then UT would not have resigned..
#SupremeCourt #ShivSenaCrisis

Salve: politically you are correct... but the communication can be set aside.. but the thing is he did not face the trust vote.
#SupremeCourt #ShivSenaCrisis

CJI: Nabam Rebia becomes correct or wrong based on which side you are on.. some says it is and some says it is not
#SupremeCourt #ShivSenaCrisis

Sr Adv NK Kaul: Nabam Rebia does not need a reference. It has no conflict with Kihoto Hollohan.
#SupremeCourt #ShivSenaCrisis

CJI: It is a tough issue to answer because the consequences of both positions are serious. If you take Nabam Rebia position, as we have seen in Maharashtra... it allows the free flow of human capital from one party to other

Sibal: so well put milord
#SupremeCourt #ShivsenaCrisis

Sibal: at first brush you are correct but the politics of defection cannot be decided in the house and you have to go back to the political party #SupremeCourt #ShivsenaCrisis

CJI: the second end is that even if the leader of the political party has lost his flock, he can hold it down and thus adopting it would be ensuring a political status quo. Whichever way you accept, has very serious consequences and not desirable

#SupremeCourt #Shivsena

Kaul: Internal dissent within a party is the essence of democracy. Merely because there is a struggle to remove leader of a party, doesn't mean that it is under Tenth Schedule. There was no free flowing of human capital.. no flow.. we are the overwhelming majority..
#Shivsena

Kaul: on notice... the members were given contrary to the rules, 7 days time to reply on two non working days..The MLAs whose houses and family members were being attacked and they had no way to come to Maharashtra then.. #shivsenacrisis

Kaul: The whips being issued etc has been done by a hopeless minority within the Shiv Sena...

#SupremeCourt #SupremeCourtofIndia #ShivSenaCrisis

Kaul: we are the shiv sena and we represent the majority and thus there is no question of free flow of human capital happening here at all
#SupremeCourt #SupremeCourtofIndia #ShivSenaCrisis

Kaul: impression being given is horse training.. govt being toppled etc.. but what is not being said that there was dissent within the party and the leader had lost majority absolutely
#SupremeCourt #SupremeCourtofIndia #ShivSenaCrisis

CJI: Mr Kaul once you invoke Nabam Rebia under Article 32.. it would be gloss to say that June 27 order was not based on Nabam Rebia but on fairness but it cannot be denied that you had invoked jurisdiction under Nabam Rebia case itself
#SupremeCourt #ShivSenaCrisis

CJI: If the order was only on natural justice... reply date would have been July 2 but then since you relied on Nabam Rebia time was given till July 12

Kaul: it was not based on Nabam Rebia as the judgment is not natural justice.
#SupremeCourtofIndia #ShivSenaCrisis

CJI: The thing is house was not faced at all by @OfficeofUT and that is something we have to deal with.
#SupremeCourt #SupremeCourtofIndia #ShivSenaCrisis

CJI: You have to tell us if reference of Nabam is a live issue.. one you can argue is that do not refer it in this case or say that it is indeed the correct law
#SupremeCourt #SupremeCourtofIndia #ShivSenaCrisis

Kaul: Nabam Rebia discusses that all provisions being discussed was at the time when 10th schedule was not in place.. no constitutional provisions can be fossilized not to deal with a evolutionary problem. all the arguments are technical which is being discussed.
#SupremeCourt

Kaul: the speaker who is working towards an unconstitutional end ..he will not wait till a motion is moved under 179(1) and he will start working right away to oust the members who would be problematic in the end goal
#SupremeCourt #SupremeCourtofIndia #ShivSenaCrisis

Kaul: moment notice is given you start diluting or altering the pool of people who will vote for or against you

#SupremeCourt #SupremeCourtofIndia #ShivSenaCrisis

CJI: If you interpret article 181 quite literally there is 1 disability on the speaker.. when a motion for disqualification is there he cannot preside on the motion but he can participate in it.
#SupremeCourt #SupremeCourtofIndia #ShivSenaCrisis

CJI: save and except this disability the constitution places no other disability on the speaker
#SupremeCourt #SupremeCourtofIndia #ShivSenaCrisis

CJI: If a speaker presides the motion of his removal he it will be violating the rule against bias
#SupremeCourt #SupremeCourtofIndia #ShivSenaCrisis

CJI: 181(1) embodies the principle of constitutional bias. Does the prohibition attach when the motion is under consideration? #SupremeCourt #SupremeCourtofIndia #ShivSenaCrisis

Justice MR Shah: you have to tell us What is "under consideration"? Does it begin even when notice for removal moves?

CJI: does it become under consideration only when house starts?

Bench to resume at 2 pm

#SupremeCourt #SupremeCourtofIndia #ShivSenaCrisis

Sr Adv Kaul resumes:

#SupremeCourt #SupremeCourtofIndia #ShivSenaCrisis

Kaul: when the entire house is involved. It says, in a tie you will not vote. If constitutional bias is to be avoided under the tenth schedule, the date has to be the date of notice. There is no vested right to continue as a speaker.

#SupremeCourt #SupremeCourtofIndia

Kaul: if a member is disqualified unfairly by speaker, the bedrock of democracy is shaken. Because not only do you lose your right to vote but there is a whole Constituency which goes unrepresented...

#SupremeCourt #SupremeCourtofIndia

CJI: you require only 1 person moves the notice... there is no threshold of minimum numbers.. this can cause grave danger which will stop the speaker from working #shivsenacrisis #SupremeCourt #SupremeCourtofIndia

Kaul: it will not be indefinite because the resolution will be put to vote.. now if a speaker does not take it up then speaker is the interested party.. then Nabam Rebia is the correct law

CJI: because he is the affected party..

#shivsenacrisis #SupremeCourtofIndia

CJI: After 10th schedule some substantive constitutional provisions were amended and Article 181 has not been amended by the parliament.

Kaul: but this court has interpreted time and again adopting evolutionary an ever changing rules of interpretation #shivsenacrisis

CJI: In 181 restraint on speaker is when motion for his removal is under consideration. But those restraints to be logical must also commence when motion is under consideration..it is when stage 1 proviso to section 179(c).. when 14 days over speaker convenes house and it is read

CJI: if 29 members rise leave is granted and after 7 days it will be put to vote so motion is under consideration when leave is granted so can we say motion is consideration prior to the stage of grant of leave?

Kaul: we cannot say that speaker working towards unconstitutional end will only work when the motion is taken up and not before that @shivsenacrisis #SupremeCourtOfIndia

CJI: Dont you think it can be tweaked.. can we do it in a composition of 5 judges..

Justice Shah: when notice is issued speaker has to stay his hands.. Justice Khehar and Mishra have held this categorically. Can we tweak this a bit? #SupremeCourtofIndia

Justice Narasimha: particular act of recognizing 29 members and them rising for leave granted... that is according to me probably the start of the notice for his removal.. so can we do it? in 5 judges composition or 7 judges? #ShivSenaCrisis

Justice Narasimha: because till the 29 members rise and leave is granted everything else is not sure,it may or may not happen #shivsenacrisis

CJI: We wish to take a 10 minutes break to discuss something and come back.

Sibal: we wish to placing something

CJI: We can talk with each other without the mic #ShivSenaCrisis

CJI: please conclude today on whether reference should be made or not

Kaul: There is no reason for this concern that one members serves a notice and speaker stays his hands. Constitution does not differ between one member serving or two.

Kaul: Conflict arises when there is intention to initiate removal of speaker.. 7 days..14 days is all procedure. Intent of Nabam Rebia was to stop the conflict of interest

Sr Adv Kaul narrates the facts of the Nabam Rebia case to show that the case indeed dealt with disqualification of members #ShivSenaCrisis

SG for Maharashtra Governor: I only need 10 minutes. I will point out the flip side of the exercise that the petitioners have asked this Court to undertake, the right of the voter does not find place in their arguments. We are not a two party system.

#SupremeCourt

SG: We are in the era of alliances. In a multiparty system, there are pre and post poll alliance, latter is an opportunistic one to make up the numbers but pre poll is based on principles.

#SupremeCourt

SG: There was pre poll alliance between BJP and Shiv Sena. You do not go to voter as only individual but shared party ideology. Voter votes for ideology and the political philosophy that parties project. We hear the word horse treading. Here leader of stable ...

#SupremeCourt

SG: formed government with those against the alliance.

SC: How can Governor be heard to say all this? On the formation of government how can the Governor say this?

SG: I will come to the main, i entered into the facts.

SC: Governor asks for trust vote.

SG: Not on lis

SG: But why Nabam is correct on law.

SC: Only saying governor should not enter political...

SG: Yes.

SG: When Kihoto was examining Constitutional validity, there were two contentions: one, that it negates freedom of expression of electors. Argument was unless and until I express them, you are curtailing. Second was right to conscience.

#SupremeCourt

SG: I never intended to enter into merits.

#SupremeCourt

SG: I am conscious as to what i must point out to my lords for a Constitutionally correct decision. 10th schedule is to stifle unprincipled defections not principled dissent.

Judges discussing.

#SupremeCourt

SG: if a speaker is allowed to disqualify members on the basis of right to conscience then such rights have to be revisited

Sr Adv Kapil Sibal: how can you argue all this ? This has to be from the Governor and recorded so and it cannot be said that he is arguing in personal capacity... Then should we argue that if ruling party has fundamental right to buy off people ? #ShivSenaCrisis

CJI: Is it your submission that the bar on speaker arises when a notice is moved under Article 179...#ShivSenaCrisis

SG: question is in facts of this case does the correctness of Nabam Rebia arise at all ?

CJI: you are basically saying speaker should not be allowed to alter the composition of the house which will ensure that he is not ousted from the house?

SG: Correct #ShivSenaCrisis

SG Mehta: 10th schedule is not a weapon to stifle dissent but to control unprincipled defection. Suppose court holds that Nabam is not a good law.. what relief would flow in this current case after several events which has taken place ? Should only academic exercise be taken now?

CJI: the last leg of the hearing will be tomorrow. Bench rises #ShivSenaCrisis #SupremeCourtOfIndia #SupremeCourt