Thread by @barandbench

#SupremeCourt Constitution Bench to resume hearing batch of petitions in relation to political crisis of 2022, which led to change in power Maharashtra after the split of #ShivSena political party into two factions, one led by @OfficeofUT and the other by Eknath Shinde

CJI DY Chandrachud: I hope you keep your word

Sr Adv AM Singhvi: Yes only on residual part.. more 20-25 minutes

#SupremeCourtOfIndia #MaharashtraPolitics #ShivSenaCrisis

Singhvi: issue to be decided is can the speaker be disabled so easily sounding the death knell for the 10th schedule. the second is positive and negative injunction which are against Kihoto Hollohan judgment

#SupremeCourtOfIndia #MaharashtraPolitics #ShivSenaCrisis

Singhvi: There is no case where governor can act like this when disqualification is pending or sub judice. It is a double sub judice both in supreme court and before the speaker

#SupremeCourtOfIndia #MaharashtraPolitics #ShivSenaCrisis

Singhvi: the governor recognises a split. If the court cannot do it, the governor will do it. the governor directly recognises the split. governor is in error as a constitutional authority and the centre then recognises this split

#SupremeCourtOfIndia #MaharashtraPolitics

Singhvi: I know this court cannot issue directions to the governor and contempt does not lie but in ordinary case contempt notice should have been issue and in an appropriate case it has to be seen till where does the arc of immunity lie..
#SupremeCourtOfIndia #ShivSenaCrisis

Singhvi: these are serious consequences for our constitutional polity and they are case neutral to the present case. these are juristic question and bound to recur unless plugged. these are all within judicial domain

#SupremeCourtOfIndia #MaharashtraPolitics #ShivSenaCrisis

Singhvi: this court should restore the status as on June 27, 2022.

#SupremeCourtOfIndia #MaharashtraPolitics #ShivSenaCrisis

Singhvi: in case of merger, if 6 or 10 leaves the remaining is protected. But for the interim order of this court, I am not protected. today they are issuing letters and whips... i will be disqualified for not following his whip..they have become the party.

#ShivSenaCrisis

CJI: you said that this is not a case where trust vote was called after elections... it was post formation of govt.. what is the power of governor to call for trust vote after formation of govt..

Singhvi: it is zero power where there are pending disqualification issues

Singhvi: one is normal vanilla government with no pending disqualification proceedings but here there are pending proceedings. So zero power of governor. the governor is recognizing ABC as the majority

#SupremeCourtOfIndia #MaharashtraPolitics #ShivSenaCrisis

CJI: So answer is so long as disqualification petitions are pending.. there can be no trust vote. But the speaker can say I am not disqualifying at all.

Singhvi: I am giving a juristic answer.. it can happen when there is no cavil or dispute.

Singhvi: 10th schedule was enacted to avoid trust vote situations by such trust votes

#SupremeCourtOfIndia #MaharashtraPolitics #ShivSenaCrisis

CJI: In assessing a ruling party strength, you have a numerator and denominator. Numerator is strength of party, denominator represents strength of house. As per you the governor recognises part of the numerator...

CJI: Does the governor not recognize the fact how or how not the numerator is affected...

Singhvi: this excercise cannot be done by the governor

Justice Narasimha: yes governor cannot assume the power you argued

There is no jurisdiction embargo on governor: Singhvi

CJI: Mr Singhvi your argument is unless the decision of disqualification pleas is communicated the governor he cannot take the decision so he knows the numerator which will be affected..

Justice Narasimha: governor cannot take cognisance of 10th schedule proceedings unless he knows the consequence of the disqualification plea..

Singhvi: otherwise there will be chaos. governors are no angels #shivsenacrisis

Sr Adv Kapil Sibal: 10th schedule does not recognise majority, minority and so how will governor know this...

CJI: yes you are saying this is no individual act..

Sibal: yes it cannot be otherwise tomorrow one shiv sena MLA along with BJP will go and say that they are majority

Sr Adv Devadatt Kamat: giving recognition to whip has nothing to do with parliamentary business and this is not a mere case of procedural irregularity but a case of substantive illegality and unconstitutionality #shivsenacrisis

Sr Adv Devadatt Kamat: political party is not something which anomalous. it is clear and directions of political party under 10th schedule means directions from the leadership of the political party

Sr Adv Devadatt Kamat: The leadership structure has to be communicated to the Governor.

CJI: Mr Kaul please argue first followed by Sr Adv Jethmalani and Maninder Singh

Sr Adv Kaul: I have 3 and half days argument. I can finish by tomrw.

CJI: Please finish by 12 pm tomorrow

SG Tushar Mehta: Thursday i will take not more than 1 to 1.5 hours.

CJI: If you can finish between Mr Kaul and Mr Singh tomorrow then SG can take time followed by rejoinder

Hearing to resume at 2 pm
#SupremeCourt #ShivSenaCrisis

Sr Adv NK Kaul: A large number of arguments is far beyond the questions referred. What is the basic premise of petitioner arguments. They say since there was a split we respondents stand disqualified and SC should bypass all Constitutional authorities and say we are disqualified

Kaul for Eknath Shinde faction: They say unless the disqualification plea is decided.. governor or the Election Commission cannot take any call and Supreme Court should restore status quo ante. This has been argued

Kaul: these submissions suffer from a basic problem. Supreme Court has held it will not act as court of first instance when there are coordinate Constitutional authorities #SupremeCourt #ShivSenaCrisis

Kaul: there were emphatic assertions made when question was posted that what should governor do when govt is formed.. it was submitted no floor test but only a vote of no confidence. With respect these submissions are in teeth of SR Bommai judgment by 9 judges of this court

Kaul: arguments being proposed is destructive of the entire constitutional scheme as was envisaged in the Bommai case #SupremeCourt #ShivSenaCrisis

Sr Adv NK Kaul: SC in Bommai held that by whatever process or means governor gathers info raises a doubt about majority of govt, the governor orders a floor test and you did not take the floor test saying it was fait accompli

#SupremeCourt #ShivSenaCrisis

Sr Adv NK Kaul: The only mode available is the floor test and then you cast apserisons on a constitutional authority. 7 members went to governor and said they do not have faith in Uddhav Thackeray govt and so what does the Governor do?

#SupremeCourt #ShivSenaCrisis

Sr Adv NK Kaul: who will decide there is a split in the legislative party and not the political party. Political party is organically linked with the legislative party. Discontent arose from fighting elections with one party and the forming govt with anothet led to discontent

Sr Adv NK Kaul: We had argued earlier that how can SC take a call on this issue just because you feel we are per se disqualified

#SupremeCourt #ShivSenaCrisis

Sr Adv NK Kaul: SC has held that MLA during pendency of disqualification proceedings has full rights to vote. Then what was the hindrance of them voting in the floor test

#SupremeCourt #ShivSenaCrisis

The problem is antecedent circumstances which necessitated the floor test is an alleged defection. The need of floor test arises because a group of legislators may be disqualified for splitting from the legislative party: CJI

When the legitimacy of split is in question then holding floor test before deciding the disqualification petitions would it not lead to putting a premium on the circumstances which led to the alleged defection : CJI

We have to be cognizant of the situation that a person can perform all duties as a legislator because the speaker has not decided the disqualification plea.. why can't the legislature be not asked to stay hands off till pleas are decided: CJI

What was the requirement of the floor test and this 7 independent MLAs said they are not with the CM. So all the clamour then.. so if that is the basis of all chaos in the house then... : CJI

This is not a case of 3 to 4 party coalition or some parties pulling out. The governor can ask for majority to be proven. Problem arises in the cases like this when reasons of trust vote is intrexicably linked to the alleged defection : CJI

Justice MR Shah: Their case is that it is better disqualification proceedings are decided first and that is the crux of their main submission. #ShivSenaCrisis

Kaul: We need to see SR Bommai case and how the Shivraj Singh Chouhan case deals with it. #ShivSenaCrisis

CJI: Bommai was a case where council of ministers were called to summon the house and governor said he thought they lost confidence of the house. Court held governor cannot hold so and only a floor test is to be ordered. So Bommai is very different to this case you see

CJI: Split as a reason has gone away after 2004 and now only merger remains... If we accept this extreme proposition radical situations will emerge. 10th schedule is there to prevent Constitutional sin of defection .. so that is why disqualification proceedings but then we ..:CJI

CJI: ..also say that till disqualification let floor test be held. So in a way you are legitimising defection though such an argument! #ShivSenaCrisis #SupremeCourt

CJI: Whether you are Shiv Sena or not will not be decided on the floor of the house..

Kaul: Yes by the election commission ...and we say that there was no split. #ShivSenaCrisis

Justice Kohli: Then you go to party members and say that okay we are the shiv sena.. you cannot do that on floor of the house.

#ShivSenaCrisis

Kaul: one is rival faction and if it's recognised and that has to be decided by the ECI. Floor test is not for me to say I am majority in Shiv Sena. i am here to show that you Mr Thackeray you have lost the confidence of the house
#ShivSenaCrisis

Kaul: we have maintained that this is a case of internal dissent and that we are the real Shiv Sena. #ShivSenaCrisis

Kaul: you remove 39 plus 3 votes.. total 42 and we are still through to form the government. My contention is why should 42 be deleted at all ? Nabam Rebia held the field then and it said so. #ShivSenaCrisis

Justice PS Narasimha: Power of Governor in context of 10th schedule is important here since there are disqualification proceedings pending. #MaharashtraPoliticalCrisis

Kaul: now saying disqualification plea not decided yet and then floor test being held is all hypothetical question and why at all should we enter it #ShivSenaCrisis

Kaul: Court held that personal opinion cannot be the basis of governor dissolving the govt but only floor test should be ordered. There is no other way out #ShivSenaCrisis

Leader of opposition cannot duck the responsibility by not ordering a vote of no confidence and straightaway have a trust vote. Should the governor not have been informed of such vote of confidence first by the leader of opposition CJI #Shivsenacrisis

CJI: What was the objective material before the governor?

Kaul: 7 independent MLAs

CJI: They had no role in the government

Kaul: they were part of the govt and they withdrew support

Justice Narasimha: was letter of support given by the ones who did not hold ministerial posts?

CJI: See para 75 and 76 of shivraj singh chouhan judgment, court held that governor had objective material before him. please read it. #shivsenacrisis

Kaul: Governor took an informed decision and if you feel you cannot face a floor test you should back out. which govt can continue without the floor test.. The governor notes that there is violence, attacks. 34 of 55 do not support the ministry. 7 independents have withdrawn

CJI DY Chandrachud: Come on.. Just read the Governor's letter.. how can he say this.. just read it. #shivsenacrisis

CJI: A lot of this written is constitutionally extraneous.. like MLAs facing threat etc cannot be a ground for a trust vote. only the point that 7 independent dont support anymore and 34 says that they want shiv sena to walk out of maha vikas aghadi.. .....

CJI: When governor starts intervening in a sitting house.. then... why should a govt which has been formed and in respect of which there was no disquiet a month ago.. suddenly to face a trust vote?? why no vote of no confidence. #ShivSenaCrisis

Kaul: Milord there cannot be a cut off date for party members to lose confidence in the party. Why should governor not exercise discretion of calling trust vote but instead call for vote of no confidence... just because there was majority a month back? #ShivSenaCrisis

CJI: The head of the political party did not inform the governor that they are withdrawing from the alliance of MVA...

Kaul: but here 34 out of 55 have written to the governor saying they have no faith on this government. #shivsenacrisis

Justice Narasimha: you are saying no split or merger.. you are saying that you are the political party,..where is that kind of material before the governor to show that you have garnered political majority. please show us.

Kaul: please give me time till tomorrow to show this

Kaul: 10th schedule is where legislature party co joined with political party emerges. Regarding governor calling a floor test is whether the members enjoy majority or not. this is the only thing which governor has to see #shivsenacrisis

CJI: It is not open to one segment of shivsena or congress to say that we are part of the alliance. none of the parties of MVA can say that you dont want to go alongwith the alliance.. go to your political party leader, none of them had majority. SS had 55 .congress had 44.. etc

CJI: Your letter to the governor has one thing absent.. that we are the shiv sena. Governor was not alive to this argument at all that you are the shiv sena at all. none of the parties in the MVA had the majority so as to just walk out of the alliance.

Kaul: just because you say I am not disqualified, you cannot say I have incurred ex facie disqualification and only the election commission can decide on this.. the governor noted that there is overwhelming discontent among the cadre of the party since they were part of MVA

CJI: Show us the resolutions tomorrow.
Hearing to resume tomorrow #ShivSenaCrisis