Thread by @barandbench

#SupremeCourt Constitution Bench to resume hearing batch of pleas in relation to political crisis of 2022, which led to change in power Maharashtra after the split of #ShivSena political party into 2 factions, one led by @OfficeofU and the other by Eknath Shinde #ShivSenaCrisis

Read yesterday's report here:

Maharashtra Politics: If Governor starts intervening in a sitting house, should elected government face trust vote? Supreme Court #SupremeCourtofIndia #ShivSenaCrisis

barandbench.com/news/litigatio…

Sr Adv NK Kaul for the @mieknathshinde faction: Let me finish reading the Shivraj Singh Chouhan judgment

#SupremeCourtofIndia #ShivSenaCrisis

Kaul: this submission is not being made for first time that trust vote should be only when a govt is formed or disqualifications applications are not pending.. these issues were raised and rejected by Supreme Court #SupremeCourtofIndia #ShivSenaCrisis

Kaul: repeatedly saying that there is a split and there is no merger is no ones case. I did not say that we merged or split from the political party. we say that we are the rival faction within shiv sena which should be recognised as the main party and it has been done so

Kaul: In BS Yeddyurappa case it was held that merely a dissent was held within the party that you have no faith in the leader then you dont suffer the wrath of Article 2(1)(a) and do no stand disqualified.. you held there should be overt specific acts. #ShivSenaCrisis

Kaul: our case was not that we did not have faith in CM Thackeray but that we cannot be in alliance with INC and NCP since we are of competing ideology and we were in pre-poll alliance with the BJP. That is why no voluntarily giving up membership of party #ShivSenaCrisis

Justice Narasimha: you have to answer whether whip emerges from the legislative party or the political party

Kaul: let me take you through the timeline..

#SupremeCourtofIndia #ShivSenaCrisis

Kaul: political dissent does not mean voluntarily giving up membership of the political party #SupremeCourtofIndia #ShivSenaCrisis

CJI DY Chandrachud : On June 21 there were clear two factions. One had 34 and the other said they had 21.

Kaul: under secretary of the Maharashtra secretariat that Ajay Choudhary of minority faction is appointed and does not respond to us #SupremeCourtofIndia #ShivSenaCrisis

Kaul: conflict of interest for speaker starts when the notice is served to you. Justice Arun Mishra had noted this and conscious of this court did not injunct the speaker but gave him time till July 12, 2022 #SupremeCourtofIndia #ShivSenaCrisis

Kaul: Mr Sanjay Raut had said you will see dead bodies etc and there were other threats too .. that is why court extended the date that is all. then again a disqualification plea was moved on June 27 against 22 MLAs #SupremeCourtofIndia #ShivSenaCrisis

Kaul: How can a chief minister ever say that he will not face a floor test. It is held that floor test is the litmus test of a true democracy. Governor has to just see that whether the govt of the day enjoys majority or not

#SupremeCourtofIndia #ShivSenaCrisis

Kaul: House reaffirms confidence on the newly elected speaker Mr Navrekar on July 4. Thereafter Mr Shinde proves his majority in the house by 164 for and 99 against.

#SupremeCourtofIndia #ShivSenaCrisis

Justice Shah: can it not be said that by issuing fresh whip they have accepted the fate of the trust vote on July 4..

Kaul: I am grateful yes that is the case.

#SupremeCourtofIndia #ShivSenaCrisis

CJI: The moment it is a rival faction it makes no difference when you say that you are the real party etc. All dates show that there is a rival faction within the meaning of 10th schedule and split within the meaning of 10th schedule: CJI #ShivSenaCrisis

CJI: Split does not postulate that a members who split leave the party...10th schedule also operates in case of majority or minority of members and no difference in application of 10th schedule #ShivSenaCrisis #SupremeCourtOfIndia

Kaul: Speaker under 2(1)(b) will look at who issues the whip and as on June 21 it is not Mr Sunil Prabhu. Speaker under 10th schedule is not to determine there is a split or not as it is ECI domain. Symbols order para 6 and 6a means continued recognition of a political party

CJI: Please see the rules of Maharashtra Legislative Assembly

Justice Narasimhan: Those rules are very very important

#SupremeCourtOfIndia #ShivSenaCrisis

Kaul: the speaker has no independent tools at his disposal to find out that within a political party which is the real faction. then they come to court and say that we are ex facie disqualified and thus should be ousted. #SupremeCourtOfIndia #ShivSenaCrisis

CJI DY Chandrachud: Mr Kaul you are referring to papers in a paperless bench.

Kaul: i was dreading that this will not be noticed but it has befallen upon me, this tab is here (with the junior), I am referring to it

CJI: you have to navigate the tab as well

Kaul: speaker is the constitutionally designated authority to decide disqualification issue.. here the submissions being made is in teeth of Kihoto.. you cannot come to SC and say that SC should decide this since according to you it is extraordinary
#ShivSenaCrisis

Kau: how can the court deem an MLA to be disqualified before the authority decides and would not it override the constitutional decision making process and would it not hamper electoral democracy where an entire constituency goes unrepresented #SupremeCourtOfIndia #ShivSenaCrisis

Kaul: it is being argued that this court is responsible for the toppling of the government and thus this court should only restore the status back to what it was. Annul the trust vote, the decisions taken by the govt and annul everything.. this is what is being prayed

Justice Shah: you are saying that suppose budget is passed.. so if everything is reversed then decisions taken will also...

Kaul: Absolutely, I cannot put better than this milord
#SupremeCourtOfIndia #ShivSenaCrisis

CJI: That is why we have formulated the judicial de facto doctrine that where appointment of a judge is found to be faulty.. all the decisions taken by the judge is not affected.. #SupremeCourtOfIndia #ShivSenaCrisis

Justice Narasimha: how are we going to deal with such situations when disqualification petitions are filed and speaker does not decide and then house goes on and he participates.. what should be the time limit... Megh chandra was referred to larger bench #ShivSenaCrisis

Kaul: this is just a splinter group and there is no split

Justice Narasimha: what is the difference..

Kaul: split is when you invoke it under 10th schedule to avoid disqualification. This is not such a case. #SupremeCourtOfIndia #ShivSenaCrisis

Bench to resume hearing at 2 pm #ShivSenaCrisis #SupremeCourtOfIndia

Sr Adv KAUL: Regarding splinter in a recognised political party..ECI has to decide which is the rival section is the recognized political party. Decision of ECI shall be binding, Please combine this with para 3 of 10th schedule #SupremeCourtOfIndia #ShivSenaCrisis

Kaul: when you split and form a political party it saves you from disqualification under 2(1)(b) ..this court has held that there cannot be two recognized parties within the set up as the symbol cannot be given then #SupremeCourtOfIndia #ShivSenaCrisis

Kaul: we have never claimed that we have a new original political party.. we are saying that we are the same political party. #SupremeCourtOfIndia #ShivSenaCrisis

Justice Narasimha: what does the speaker do then when you say you are the original political party... ? they say there is 10th schedule violation.. but you say it is re organization of political party.. what is the speaker supposed to do? #SupremeCourtOfIndia #ShivSenaCrisis

Kaul: speaker has link with the whip of the legislative political party.. In Rana's judgment held that SC cannot embark upon to find out if there is a split.. today there is a question is about a rival faction.. #SupremeCourtOfIndia #ShivSenaCrisis

Justice Kohli: what does splinter group mean as per the symbols order...

Kaul: one of them who carries on with the symbol of the party.. pendency of a disqualification proceeding will not bar a MLA to participate in proceedings of the house.. #ShivSenaCrisis

Justice Narasimha: in facts of this case the majority of the assembly is based on legislators..

Kaul: decision which the legislature party took also has the authority of the political power...

#ShivSenaCrisis

CJI: Para 2(1)(b) still poses problem. the order of the ECI is prospective as it determines which of two is the political party and thus we have to hold that though it does not date back to defiance of whip.. then para 2(1)(b) will also not operate.. and thus no whip being defied

CJI: It will not be retrospective but retroactive.. otherwise it will be anomalous. #ShivSenaCrisis

Kaul: the moment you know there is internal party dissent.. and they know that overwhelming party cadre not with them..5 of them go to speaker and file a disqualification petition .. so a trust vote which should happen immediately does not happen and abuse of this is enormous!

Kaul: impression being given is governor acted without application of his mind and no material on record.. what else can be better when MLAs write to governor saying that they have no faith in the alliance..etc. In yeddyurappa case they wrote saying they did not have faith in CM

Justice Kohli: out of the 34 how many were ministers when it was signed and sent to governor

Kaul: 8 were ministers

#shivsenacrisis

CJI: As a matter of propriety should have the governor invite Mr Shinde to form the government?

Kaul: what is wrong with it it... it cannot be a headless govt. it was with the party also (BJP) with whom there was a pre poll alliance. #shivsenacrisis

Kaul: that CM did not have the moral authority who refused to face the floor. these 39 members cannot be excluded.

#shivsenacrisis

CJI: Suppose the interim order was not passed on June 27 and take it at its worst that speaker disqualified these people.. they would cease to have been members of the house.... then would have the governor called a trust vote after noting that 39 were out of the alliance?

CJI: If the 39 were ousted then Eknath Shinde would not have been called to form the government and may be BJP would have been invited. Petitioner is correct in saying that Shinde being called to form govt came to being only because speaker did not disqualify him #shivsenacrisis

Kaul: this is all hypothetical...

CJI: Not exactly hypothetical.. we know what happened and led to this #shivsenacrisis

Kaul: whichever way we look Uddhav Thackeray did not have the numbers. that is why he resigned within 10 minutes.

#shivsenacrisis

Kaul : what was the hurry that you wanted replies to be filed before the speaker over the weekend.. Nabam states that speaker cannot proceed at all when a disqualification is pending against him. #shivsenacrisis

CJI: We will start at 11 am tomorrow. Mr Kaul please wrap up by 11:45. Sr Adv Maninder Singh and Mahesh Jethmalani can finish till 12:15 and SGI can finish by 1 pm. Then rejoinder can finish till 4 pm. #SupremeCourtOfIndia #MaharashtraPolitics

Sr Adv Kapil Sibal: One thing I know is that the CJI is not tired of hearing..

CJI: If you know how vast the pool of knowledge is you won't get tired. The last word is not until the last word is heard

Bench rises

#MaharashtraPolitics