Thread by @LiveLawIndia

#SupremeCourt Constitution Bench to hear today the Shiv Sena case between #UddhavThackeray and #EknathShinde factions.

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Sr Advs Kapil Sibal, AM Singhvi & Devadatt Kamat, appearing for Uddhav Thackeray's faction, have concluded their arguments. So far, Sr Advs NK Kaul & Harish Salve have appeared for Eknath Shinde, the rebel Shiv Sena leader who led a coup against Thackeray.

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The #ConstitutionBench comprises CJI DY Chandrachud, & Justices MR Shah, Krishna Murari, Hima Kohli & PS Narasimha.

Read our coverage of the previous hearings here.

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Sr Adv Harish Salve: It may not be really feasible to say in black and white in what circumstances the speaker should or should not act. In this case, although it is academic now, it can be that speaker lost his position because of numbers.

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Salve: There was a provision for a split, which has now been deleted. Sizeable number...Kihoto might need relook, has this law become anti-dissent?

CJI: What is a sizeable number?

Salve: Not for the court to decide.

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Salve: Everything cannot be scrambled like this just by approaching #SupremeCourt. This court cannot issue direct a CM who has resigned to come back...Whenever there is a question, governor must call for a vote of confidence, nothing wrong.

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Salve: Your Lordships have said that let democracy play out on the floor of the house. That is the position laid down in SR Bommai. Governor did nothing wrong by calling the floor test. As far as the Nabam Rebia, it might need to be relooked.

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Salve reads out from Keisham Meghachandra Singh v The Hon'ble Speaker Manipur Legislative Assembly.

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Salve: I commend this judgement for Your Lordship's acceptance. It is sound on principal & sound on logic. To close, this court is being invited to embark on an entirely political journey - which is to speculate what would have happened...

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Salve: ...What would have happened if a trust vote had actually happened. this court has never concluded that pendency of challenge to someone continuing in this house renders that person legally disqualified until requalified.

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Salve: ...Till disqualification is decided, entitled to participate and vote. But yes, the system & court are not powerless. If it is found that trust vote is vitiated by large no of people who are disqualified after, intervention merited.

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Salve: What wrong has the governor done? Former CM tenders resignation, ofc he has to accept the resignation...

In whatever reasonable time, speaker will decide all pending disqualifications. If anyone is dissatisfied A226 remedy there.

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Salve: Second, Nabam Rebia is a thorny issue. I have already made my submissions.

Third, No impediment in issuing directions to speaker to decide. But, that is where this case must end now.

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Senior Advocate NK Kaul: Their legal argument is that #SupremeCourt should bypass entire constitutional machinery of coordinate constitutional authorities & decide this by itself, without speaker having decided it. Contrary to all judgements.

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Kaul: Political party & legislative party are conjoined & interdependent. These cannot be segregated. Dissent is the hallmark of democracy. Argument that they represent legislative party & not political party is a fallacy.

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Kaul: This court has said speaker will not embark on independent inquiry on split in the party, de hors disqualification. Wrt disqualification, only a prima facie view to be taken. They are asking speaker to usurp power which they don't have.

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Kaul: Your Lordships are being asked to bypass the election commission, speaker & governor - three constitutional authorities vested with specific powers & areas of concern & interference...

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Narasimha J: Difficulty arising because you are formulating principle of prima facie view. Your defence in case of split is realignment. That is fine, but principle has to be formulated wrt decision of speaker...

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Narasimha J: ...As I was indicating earlier, it may be a jurisdictional fact. Here, difference between a split & case that you set up (where you control political party) is very thin. V easy for speaker to say prima facie it is there or not.

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Narasimha J: ...What are the contours of that? Another aspect is, this being jurisdictional fact, when speaker concludes that it is not a case of split, you go out of tenth schedule...goes to judicial review on this point.

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Narasimha J: ...It is slippery ground in that sense that speaker is now expected to take prima facie view, & with regard to the material available in front of him.

Kaul: A CB has held that speaker cannot take anything but a prima facie view.

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Kaul: ...Today, can your lordships say that we will decide this? Taking away jurisdiction of all other coordinate and competent constitutional authorities.

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Kaul: Rana was a decision where #SupremeCourt exercised its jurisdiction to say on the day of disqualification, split had not happened...speaker went ahead with split. Facts regarding disqualification will go back to day of disqualification.

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Kaul: A 190(3) read with A 191 says vacancy arises when you incur disqualification (either u/ A 191(1) or 191(2))...This indicates that vacancy only arises after a decision is taken as to the disqualification.

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Kaul: ...We will have unrepresented constituencies in a country where democracy is the bedrock.

Shah: If speaker does not decide for a no. of years? To say that disqualification cannot be related back...

Kaul: Till order, he continues...

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Kaul: ...While disqualification petition is pending, the legislator should be allowed to participate & vote. Otherwise, there would be a danger to bedrock of democracy. A minority govt would be allowed to continue indefinitely.

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Kaul: At the same time, Your Lordships very pertinently asked whether speaker can then hold on to this decision indefinitely. This is what Nariman J had also discussed in Keisham Singh while interpreting Rajendra Singh Rana...

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Kaul: In Keisham Singh itself, Nariman J had said a time limit should be fixed. Therefore, this very pertinent question of timeline does stand answered by this decision.

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Shah J: Your submission is that only in exceptional cases (such as in Rana), court may interfere at the stage of disqualification. In other cases, this must be left to the speaker.

Kaul: That is what the Constitution provides for.

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Kaul: ...There may be rarest of rare cases where court has to intervene. But that is not to say this court should start deciding these matters. The court cannot act as a court of first instance with respect to disqualification of MLA/MP.

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Kaul: There are three fundamental principles, governor cannot do a head count in Raj Bhavan, prima facie view to be taken on cogent material, & floor test at the earliest possible instance, because it is the litmus test of democracy.

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Kaul: If a governor is satisfied that a govt has lost confidence of the house, it is the duty of the governor to call a floor test.

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Kohli J: How many times has this power been properly exercised in recent examples?

Kaul: I'll find out. But, let us assume that no such case. So what? If a governor is within their powers & no prohibition, governor not bound by precedents.

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Kaul: If material is available before governor to reach an informed decision like this, what is wrong with it?

Kohli J: What about excess use of power?

Kaul: That should be seen in every case.

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Kaul: Governor will only look at the evidence in front of him. He can't be asked to conduct an inquiry with the same rigour as the election commission...When overwhelming nos of MLAs withdraw support, what is he to do but act on the material.

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Kaul: This court has held in SR Bommai that a chief minister cannot shy away from a floor test, which is an indicator of the confidence he & his govt enjoy...This is why calling floor test was not wrong.

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Kaul: Look at what they have argued...Thackeray's resignation to be set aside, governor ought not to have acted in constitutional capacity to invite largest party/coalition to form govt, a confidence motion, speaker's election to be reversed.

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Senior Advocate Mahesh Jethmalani: In sum & substance, two points of law they have given are: first, question of deemed disqualification (rebel MLAs were liable to be disqualified), second, court must set clock back completely.

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Jethmalani: While discontentment & division commenced from very inception of post-poll alliance of MVA govt, irreconcilable differences arose on June 21 over longstanding ideological divide with coalition partners (Congress & NCP).

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Jethmalani takes court through the timeline of events.

"First salvo was by Uddhav Thackeray on June 21 (removal of Eknath Shinde as legislative leader). After that there was no possibility of reconciliation. Party forums were irrelevant."

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Jethmalani continues taking court through the timeline of events.

"On the facts of this case, a question relating to Nabam Rebia does not arise at all. But, if this court is to say anything, it should reaffirm Misra J's separate opinion."

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Jethmalani: Whether you like Nabam Rebia or not, deputy speaker is bound by mandate. Disobedience was a serious breach of constitutional role...As regards the correctness of the view, this court ought to reaffirm Nabam Rebia.

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Jethmalani: Speaker is expected to maintain propriety as an adjudicator. From the facts of the case, it is evident that speaker repeatedly violated his constitutional duty...Speaker required to not only be impartial but also perceptibly so.

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Bench has risen for lunch, to reassemble at 2 PM.

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CJI: We are honoured to have in our midst Chief Justice of Kenya Martha Koome, the least of whose achievements is that she is the first woman chief justice of the country.

Sibal: On behalf of the bar, we welcome you.

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Jethmalani resumes his submissions.

"181 does not prohibit a construction that a deputy speaker cannot act as such deputy speaker from the time when an 179 (c) notice is moved. There is a vacuum b/w 179(c) & 181, filled by Rule 11."

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CJI: So acc to you, the prohibition (period when speaker is barred from considering disqualification petition) commences the moment a notice is given?

Jethmalani: Yes. And, any misuse is circumscribed by rules of the house.

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Jethmalani: Next, A 181 is based on the principle of one not being allowed to be a judge in their own case, i.e., the nemo judex in causa sua rule. No reason why rule should be restricted to consideration of resolution, but not notice...

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Jethmalani: ...when speaker who continues to function can use his powers to alter the constituency that would decide his removal...gerrymandering...

What is prevented by Aa 179 or 181? Speaker cannot preside over the house.

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Jethmalani: Speaker's powers of presiding over the house when a motion for his removal is under consideration. By a parity of reasoning, what applies here should also apply to that 14 day period. He can scuttle members during that time...

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Jethmalani: A speaker prone to ignoring the notice, as can be seen in this case, can scuttle the entire removal procedure...No ground for distinction b/w A179 and A181 stages. Logically, nemo judex rule must apply to both stages.

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Jethmalani: Therefore, if Nabam Rebia is revisited, the decision may be affirmed and put on stronger ground...That is my submission.

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Jethmalani takes the court through the speech of MP Sharad Dighe during the parliamentary debates on 52nd amendment in 1985: Whips merely applies to acts in the house...

CJI: Isn't that on merits? This wouldn't help your cause...

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CJI: Therefore, your contention would be disqualification was not attracted. Even assuming that, that is the jurisdiction of the speaker.

Jethmalani: Therefore, what was proposed to be done here was bring in through backdoor, 2(1)(c)...

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Jethmalani: 2(1)(c) dealt with acts outside...legislative intent was to take this out.

CJI: Sibal argued that this was per se disqualification. You are now dealing with this on merits, when all along you have argued speaker has jurisdiction.

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CJI: By going into merits...If you are inviting us into going into whether there was a per se disqualification, he may be right on that. Why go into merits? Internally inconsistent for you to argue this.

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Jethmalani: Next point, fact of 34 MLAs being part of real Shiv Sena was disclosed to deputy speaker on June 21...Deputy speaker ought to have resisted with disqualification petitions...dispute within jurisdiction of election commission.

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Jethmalani: ...Speaker can only go into legislative matters, & not organisational aspects. Besides, all MLAs are members of Pratinidhi Sabha...Even if speaker were to adopt twin test...

CJI: This point also Kaul has made...

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CJI: ...This point also Kaul has made that there was no split or merger in political party. The contention was that a rival faction represented the real Shiv Sena & this was found to be true by election commission.

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Jethmalani: Yes, my point is that speaker has no jurisdiction & the only thing speaker could have done is defer it to election commission...Nabam Rebia is good law and he ought to have obeyed it. Your deemed disqualification does not apply.

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CJ of Kenya Martha Koome rises, is escorted by the judges on the bench.

Jethmalani resumes after they return: Disqualification notice was only sent to 16 members, which reveals mala fide on his part. 16 would allow their govt to survive.

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Jethmalani: The disqualification rules are mandatory and a breach of them by the speaker/ deputy speaker is amenable to judicial review...(Reads out said rules)

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Jethmalani: ...It ill behoves a legislative assembly to say rules framed by it under a constitutional provision can be blindly ignored by them...

(Laughs) They are legislators, if they set that precedent, God save the rest of the country.

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Jethmalani takes the court through Shrimanth Balasaheb Patil.

"An exception was carved out in that case, but the principle was reaffirmed."

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Jethmalani: On the one hand, disqualification petition is given to us, speaker ignores Nabam Rebia, which was the law. Second, instead of 14 days, we were given two days. Three, they did everything possible to stop us from coming to hearings.

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Jethmalani about to read out death threats allegedly given to Eknath Shinde faction.

CJI: Not necessary for you to read these out.

Jethmalani: I'll summarise. (summarises) This is why we were compelled to approach Supreme Court.

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Jethmalani: They have elevated the entire case to the evil of defection. But, the evil of a speaker & govt hellbent on power is a greater evil...When council of ministers collectively lose confidence, they must step down...

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Jethmalani: Principle of majority rule is of paramount importance...much higher than evil of defection. There are several judgements on this. This is why governor can form a new govt headed by that person who commands confidence of majority.

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Jethmalani: To say Uddhav Thackeray resigned because of all that went on before is stretching credulity to the nth degree. He resigned because he knew that he lost the majority. Too remote a cause...He voluntarily stepped down.

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Jethmalani: There is nothing called deemed disqualification. Otherwise, the reply of the delinquent MLA & hearing become empty formalities. Also speaker would be partisan. Also untenable that the clock can be turned back.

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Senior Advocate Maninder Singh about to begin his submissions.

Bench: What aspects will you be dealing with?

Singh: Nabam, Kihoto, & two judgements on which they have relied on...

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Singh: Intra-party dissent is also an element of constitutional scheme & democracy...how do you create a balance? Rule against participation of speaker...(Reads out/refers to rules & judgements)

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Singh: Founded on principle of elimination of conflict of interest. That conflict of interest when it is required to be demonstrated in a constitutional adjudication, period of non-participation was laid down. Nabam does not need a relook.

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Singh: Original disqualification plea dealt with by speaker. To rely on Rana to say speaker's role should be conferred on this court which must now decide disqualification petitions is untenable and does not deserve this court's approval.

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Singh: Suggestion that there is something called deemed disqualification, which is contrary to our constitutional scheme, is preposterous & does not deserve to be entertained even as an argument.

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Singh: One of the rights of elected candidates is to speak against own party if need be. Can this be curtailed totally in name of party discipline & embarrassment. Should this be eliminated? (Refers to Kihoto Hollohan)

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Singh: When there is no whip, can 2(1)(a) be invoked by speaker with respect to two meetings of the party & not a vote in the house...Impermissible...Usurpation of non-existent jurisdiction.

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Singh: ...Abuse of the process. And they are raising it to a deemed disqualification.

Narasimha J: You are on merits, in sense that speaker could not have gone into this issue.

Singh vehemently disagrees.

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Singh: I will read few portions of the decision of this court in Yediyurappa & thereafter shall sit down immediately.

Everyone on the bench starts laughing.

Singh reads out from the judgement.

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Singh concludes, "The only thing that survives is whether the Rabam Nebia decision needs to be referred to a larger bench. Nothing else survives, it is only academic, especially when gentleman concerned did not face the confidence vote."

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CJI (to Solicitor-General): Mr Mehta, how long will you take?

Mehta: One hour...maybe 5-10 mins more.

CJI: We will give you an hour tomorrow between 11 AM and 12 noon.

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CJI: Mr Sibal, how long will you take after that? Between you & Dr (Abhishek Manu) Singhvi...

Sibal: I'll take the end of the day because 5 days have been taken this side.

CJI: But, we will have to wrap it up...

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Sibal: You could tell me which areas need clarification, & I will answer.

CJI: You can start your rejoinder, & if we feel you can go to the next point, we will tell you.

Sibal: No issues.

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CJI: Best if you & Dr Singhvi can...

Sibal: May not be possible. Your Lordships have been so very patient with all of us.

CJI (to Sr Adv Devadatt Kamat): Ten minutes on the clock for you.

Kamat: Alright.

CJI: 11 AM tomorrow.

Bench rises.

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