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

Senior Adv Kapil Sibal, Senior Adv NK Kaul apologies on behalf of the bar: We apologies for what happened today. The bar should not transgress its limits.

Kaul: we feel equally anguished by what happened today..equally hurt

CJI: Thank you #SupremeCourtofIndia

Justice PS Narasimha: we hear over 70 mentionings

CJI: I give all of them dates every evening..

Senior Advs Sibal and Kaul: yes milord. we apologise.. #supremecourt

Constitution bench hearing resumes: #MaharashtraPoliticalCrisis #ShivSenaCrisis

Kaul: there is an artificial distinction sought to be created between legislative party and original political party. this has never been our case ever.

#ShivSenaCrisis #SupremeCourt

Kaul: BS Yeddyurappa was a much worse case since members said they have lost confidence on the Chief Minister himself

#ShivSenaCrisis #SupremeCourt

Kaul: legislature party reflects the authority of the political party ads well.. speaker has to decide this and they want to bypass this and want SC to decide which is in teeth of Kihoto Hollohan case

#ShivSenaCrisis #SupremeCourt

Kaul: if the govt has lost majority and one faction comes and says that we have majority then what error has the governor done by calling the shinde faction to be sworn in as the CM? #ShivSenaCrisis #SupremeCourt

Sr Adv Harish Salve: court embarking on this journey will be perilous since there are delicate balances between constitutional functionaries involved. There was no floor test here and not in what would have happened and what would have not happened

#ShivSenaCrisis

Sr Adv Harish Salve: assuming anything here is not in the realm of legal fiction but the world of politics. How can this court be invited to hazard that guess.. the "but for" test cannot apply here...

#ShivSenaCrisis #SupremeCourt

Sr Adv Harish Salve: If they have defected, is the sin of defection purged? Maybe not. We don't know what would have happened on that fateful afternoon. If Thackeray would have faced the floor test then it would be different

#ShivSenaCrisis #SupremeCourtOfIndia

Sr Adv Salve: is tenth schedule foolproof.. no. it has its leaks. there is problem of criminalisation of politics, election funding etc. there are problems and we cannot cross beyond a point.

#SupremeCourt #ShivSenaCrisis #SupremeCourtOfIndia

Salve: if Maharashtra is without a CM then someone has to be invited to form government. Now should he ask Shinde to face the floor test. yes he should

#SupremeCourt #ShivSenaCrisis #SupremeCourtOfIndia

Salve: it is not everytime that there is corruption that is why there is defection. but here there are allegations of booth capturing and violence.

#SupremeCourt #ShivSenaCrisis #SupremeCourtOfIndia

Salve: this court has seen people accused of several electoral offences but still continuing in office.. that has been our system.
#SupremeCourt #ShivSenaCrisis #SupremeCourtOfIndia

Justice Narasimha: problem arises is the time and context the speech choose to take a decision on the disqualification petitions..

Salve: this has been a problem the court has been countered with time and again...

Salve:, it has to be decided on the basis of acts and omissions of the alleged delinquent members on that date. that is the ex post facto doctrine, but subsequent events will not cure that #shivsenacrisis

Salve: the sequitur is unless the date of the decision, the person is entitled to participate and Article 189(2) makes it clear that his functioning in the house in the interregnum does not vitiate any actions of the house

Salve: The rule should be amended, speaker should decide fast, judicial review should be available but the legal consequence of the pendency of proceedings will follow. Apart from this understanding of nabam rebia judgment nothing else much lies

Salve: but for test is inviting rank speculation and is indeed hazardous and should not be applied at all. #ShivSenaCrisis

CJI: Mr Jethmalani this is a matter of moment, not rushing you but how long?

Jethmalani: 20 minutes

SG Tushar Mehta: 1 hours and a few more minutes

CJI: we may not be able to wrap it up today. Mr Kaul we rushed you.. so is there anything else you want to argue?

CJI: Okay Let Mr Salve continue on next Tuesday (after the break). Mr Kaul we will hear you for some time more,, Mr Sibal we will hear you for rejoinder also for a full time

CJI declines intervention applications: give us a small note we will look at it #shivsenacrisis

The matter to resume on Tuesday, March 16, 2023 #ShivSenaCrisis