Thread by @LiveLawIndia

#SupremeCourt Constitution Bench to resume hearing the Shiv Sena case between #UddhavThackeray and #EknathShinde factions.

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SG Mehta: I'd like to point out seven points I need to assist with.

Justice Shah: Confine yourself to Governor only.

SG Mehta: Yes, yes.

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Sr Adv Kapil Sibal: When I was a young lawyer...

SG Mehta: You're still a young lawyer.

Sr Adv Sibal: Thank you so much. When I was a young lawyer, the kind of dialogue that used to go on in Justice Bhagwati or Justice Chandrachud's court was impressive.

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SG Mehta: First point is objective material given to the Governor. Second is that the governor is not concerned with tenth schedule and consequences contemplated on it.

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SG Mehta: Next point the petitioners urge was that governor should have required their side to move a no confidence motion rather than directing a floor test.

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SG Mehta: Next point is that power of governor to call for floor test is only before government is formed.
That is dealt with your lordships in Shivraj Singh Chouhan. That is good law.

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SG Mehta: The sixth proposition is that why did governor invite Mr Shinde and not the president of the party.

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SG Mehta: There is a political party and legislature party. The legislature party appoints Shri Eknath Shinde as the group leader of the legislature party.

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SG Mehta: This fact is not in dispute. This would have a bearing on why the governor called Eknath Shinde when the dispute arose.

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SG Mehta: On 25th June 2022, 38 MLAs write to the governor that malicious withdrawal of securities of our families had taken place. They produced the video clips of national news channels.

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SG Mehta: One leader of the party says- Let these MLAs come, once they come they'll find it difficult to leave and move around. There are not only 38 MLAs but 38 MLAs belonging to Shivsena. Prahar Janshakti party has 2 MLAs. So 40 and 7 independents.

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SG Mehta: So total 47 members pointing out the threats which have been administered.

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SG Mehta: Only satisfaction which the governor needs to reach is that a floor test is required. He doesn't need to say that you've lost majority.

CJI DY Chandrachud: He does that. He says you've lost the seats.

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CJI: The material before the governor was only three things - one the resolution by 34 MLAs that they reaffirmed that leadership would be with Eknath Shinde; two, the letter by 47 MLAs about threats and; third the letter by leader of opposition.

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CJI DY Chandrachud: Suppose there is a policy difference in a party on whatever aspects. Can the governor merely on that say that you must prove your trust vote?

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CJI DY Chandrachud: The governor must equally be conscious of the fact that his calling for a trust vote may itself be a circumstance which may lead to toppling of a government?

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CJI DY Chandrachud: The leader of the opposition will always write to the governor. Threat to security is not a ground for calling for trust vote. The only thing which survives is the resolution of the 34 MLAs.

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CJI DY Chandrachud: Can the governor call for the trust vote? Then you're virtually breaking the party. Looking at it in hindsight, they had lost the mathematical equation. They were not willing to disqualify 39 because it would be to their disadvantage.

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CJI DY Chandrachud: But now we're on governor's power. Governor should not enter into any area which precipitates the fall of a government.

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SG Mehta: The governor's responsibility is to ensure that a stable government is there.

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CJI DY Chandrachud: They have their remedies. They can vote the leader out by saying that the leader is not holding ethos of the party. Can the governor say that I'll ask them to prove now? It's a government which is formed, it's a functional government.

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CJI DY Chandrachud: Governor may actually precipitate the falling of government. That is very very serious for our democracy. This is irrespective of the numbers. It's clear they lost the numbers.

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CJI DY Chandrachud: All this hyperbole- it's Maharashtra, it's a very highly cultured and developed state. I mean, things are said in politics. Sometimes things are said which are inappropriate- they should never be said.

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CJI DY Chandrachud: Just the other day, we said to Dr Singhvi in a matter that there has to be some level of constitutional discourse and dialogue which is going down in our country.

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CJI DY Chandrachud: We're not condoning it.

SG Mehta: Please don't condone it. This amounts to condoning it.

CJI DY Chandrachud: No, no. We're not condoning it. In fact, we've expressed serious concern about it.

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CJI DY Chandrachud: In one of our orders, Justice Narasimha and I say it's like a race to the bottom.

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CJI DY Chandrachud: But that is different. We're not condoning it at all. But we also have to see what about the governors? They must exercise these powers with the greatest circumspection.

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SG Mehta: The governor's primary responsibility is that a stable government continues. Two, democratically elected leader should continue to enjoy the confidence of the house throughout the tenure.

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SG Mehta: Otherwise there would be no accountability of the leader.

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CJI DY Chandrachud: Monsoon session was coming. This was all happening in the third week of June. Monsoon session was going to take place. When you place supplementary demands, that's the surest test.

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CJI DY Chandrachud: If they have to seek votes of the house. One aspect of a revenue measure and if the government doesn't get the vote- they're out.

CJI DY Chandrachud: Ultimately whoever fails, whoever succeeds is a separate issue. But this is our concern.

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SG Mehta: What was seen was not just an inappropriate statement which the governor could have ignored. It was a threat that you will be brought dead and sent to postmartem.

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CJI DY Chandrachud: He wrote to the additional Chief Secretary to provide security. He did his duty by doing that.

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SG Mehta: That's too simplistic a view to look at it. Please look at it holistically. 34 MLAs have lost confidence along with 2+7 MLAs.

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SG Mehta: The governor is supposed to be not a mute spectator because the threats are not as a law and order situation. The threats are sent with a view to create an artificial majority.

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SG Mehta: Not just threats, real attacks are taking place. Would I expect the governor to sit as a mute spectator and say you wait till the monsoon session?

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SG Mehta: This court has held that the governor is duty bound to hold a floor test in such cases.

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SG Mehta: It might aggravate the situation but that's how democracy works. Therefore they say you can inherit leadership but you cannot inherit leadership qualities.

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CJI DY Chandrachud: Mr Mehta, what happens is, people start ditching a government. Then, the governors are willing allies saying hold trust votes. So you give sanctity to this.

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CJI DY Chandrachud: This is a very sad spectacle in our democracy. This is irrespective of the morality of Shivsena having joined INC.

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SG Mehta: In Kihoto, it was held that you're not going as an individual, you're going with a particular ideology.

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CJI DY Chandrachud: But they broke bread for three years. They broke bread with INC and NCP for three years. What happened overnight after three years of happy marriage?

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SG Mehta: It's not my function to answer that. That's a political debate.

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CJI DY Chandrachud: You have to ask yourself this question.

Justice MR Shah: On a lighter side you can very well say, staying together for three years cannot be said to be happy life.

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CJI DY Chandrachud: The governor has to ask himself this question. What were you fellas doing for three years?

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CJI DY Chandrachud: If it was one month after the election takes place and they suddenly bypassed the BJP and joined INC, that's different. Three years you cohabit and suddenly one fine day group of 34 say there is discontent.

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CJI DY Chandrachud: Enjoying the spoils of office and suddenly one day you just...

SG Mehta: I'll not go into politics.

Justice Shah: You can show the law.

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SG Mehta: On a lighter note, there is a very good Urdu couplet on the situation-
"Main chup raha toh aur galatfahmiya badhi...Woh bhi suna hai usne jo maine kaha nahi."

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CJI DY Chandrachud: What you call "woh bhi suna usne jo maine kaha nahi", in legal parlance we call it reading between the lines.

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SG Mehta: Your lordships asked if merely because of internal dissatisfaction the governor can take this call. A similar question arose in Rameshwar Prasad.

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CJI DY Chandrachud: There are two important things which the governor has not taken into account.

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CJI DY Chandrachud: One, insofar as the Congress and the NCP are concerned, there is no internal dissent in either INC or NCP.

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CJI DY Chandrachud: Congress had 44 members and NCP had 53 members. This is a glock of 97. The 97 still continue to be a solid block.

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CJI DY Chandrachud: What is disturbed is out of 56 the Shivsena had, 34 have...

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CJI DY Chandrachud: Second thing governor has to bear in mind is that as of this date there is not even a suggestion that Shivsena is going to team up with the BJP to form the government.

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CJI DY Chandrachud: He can't be oblivious to the fact that in a three party coalition, the dissent has taken place in one party of the three. The other two are steadfast in the coalition. They are not by any means sidekicks. They're almost at power

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SG Mehta: May i request your lordships to examine the facts of the case after the law.

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[SG Mehta reads from the judgement in Rameshwar Prasad v UOI]

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Justice PS Narasimha: The stark distinction so far as Rameshwar is concerned- Rameshwar government was not formed.

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Justice Narasimha: Instead of waiting for someone to form majority, the governor asked for dissolution. The reason he gave is that if I spend more time to allow a coalition to be formed, they will cobble up majority and violate tenth schedule and create a government.

Justice Narasimha: The court said that the Governor cannot assume that one of the political parties would cobble up majority and coalition and this is a wrong inference.

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Justice Narasimha: This is a case where the government is subsisting for more than three and a half years.

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SG Mehta: The power of the governor at the time of initial formation and the subsequent formation has to be the same.

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CJI DY Chandrachud: Look at what the consequences of these observations (in Rameshwar Prasad judgement) have on this case.

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CJI DY Chandrachud: The court says that the governor cannot refuse the formation of new government and override the majority because of his subjective assessment...

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CJI DY Chandrachud: This is a government which is legitimately formed. That's one. Second, it says governor cannot assume to himself judicial power and come to the conclusion that it's violation of tenth schedule.

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CJI DY Chandrachud: So it was alien to the governor's mind that these 34 would have to be excluded from consideration because they have incurred a disqualification under tenth schedule.

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CJI DY Chandrachud: The governor has to treat them as part of Shivsena irrespective of what their internal issue is. He cannot say that the letter given by these 34 is a ground for shaking the faith of the government.

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CJI DY Chandrachud: He has to take these 34 as forming a part of the Shivsena legislature party. And if they are a part of the Shivsena legislature party, where is the ground to say that there is a change in the position of trust in house?

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SG Mehta provides with arguments made by Mr Sorabjee's arguments which were rejected in the judgment in SR Bommai v UOI

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SG Mehta: If I as a member of the legislative assembly vote in defiance, there is a provision that party may condone it within 15 days.

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SG Mehta: So governor cannot say that I'll wait for 15 days when he is presented with the facts.

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CJI DY Chandrachud: There are two distinct things- one is dissatisfaction within a party and other is loss of majority of government. One is not necessarily indicative of another.

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CJI DY Chandrachud: In this situation, what was it that would have led the governor to come to the conclusion that the government had lost the majority? What was the factual basis for him to conclude?

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SG Mehta: 34, who were part of the government who were supposed to be having confidence of the Chief Minister.

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CJI DY Chandrachud: What is the governor saying? That these 34 who are part of the Shivsena have now expressed dissatisfaction with leadership of Shivsena.

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CJI DY Chandrachud: Unless the governor says that the natural corollary is that these 34 will cease to support the shivsena...

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CJI DY Chandrachud: He can call for a floor test if he has any circumstances before him to indicate that the strength of this three party coalition has been substantially reduced.

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CJI DY Chandrachud: Disqualification issue under tenth schedule is relevant. But what is the consequence? Consequence is that governor has to treat these 34 as continuing members of Shivsena.

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CJI DY Chandrachud: If they continue to be members of shivsena and shivsena continues to have 55 or 56 members which it originally had...

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SG Mehta: Then if they vote against, they will incur disqualification.

CJI DY Chandrachud: Right, but what is the reason for calling a trust vote?

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CJI DY Chandrachud: Tell us one reason why he has to call for a floor test.

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CJI DY Chandrachud: Forget the facts. The governor, as a matter of principle, Bommai tells us, Rameshwar Prasad tells us- circumstances which would warrant the invocation of tenth schedule are alien to the mind of governor when he calls for a floor test.

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CJI DY Chandrachud: Therefore, the possibility that these 34 in our case would incur a disqualification is irrelevant. If that is so, the governor must proceed on basis of position as it obtains.

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CJI DY Chandrachud: Unless there is some subsequent event which alters the legal constitution of the government, the governor must continue to have before him and analyse the situation as it was before the government was formed.

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CJI DY Chandrachud: He can't go to tenth schedule. That's the speaker's jurisdiction.

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CJI DY Chandrachud: Then what is the basis for calling for floor test? The only reason why he could've called for a floor test is that these 34 have alienated themselves - they have given up and they're excluded.

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SG Mehta: I am answerable first to my voters and then to anyone else. 39 members can say that we can vote against the party even at the cost of being disqualified.

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SG Mehta: Then the governor is faced with the situation where there would be unstable government.

CJI DY Chandrachud: Which means he's going to disqualification proceedings...which is what the problem is.

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CJI DY Chandrachud: One, BJP and Sena had a pre poll alliance. Two, In breach of the alliance, shivsena teamed up with INC and NCP.

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CJI DY Chandrachud: Three, by teaming up with NCP and INC, Shivsena had militated against its core ideology. Four, there has been corruption in the government.

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CJI DY Chandrachud: Five, there is discontent within the party. This by itself will not justify the governor in calling a trust vote. Never. That's what our judgements say.

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CJI DY Chandrachud: What then comes in that resolution is that we reaffirm Shinde as leader and two, Gogawale is chief Whip. First part of resolution has no bearing on trust vote at all.

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CJI DY Chandrachud: How is this a justification for a trust vote?

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SG Mehta: The difficulty is that we're trying to analyse the justification by 39. For governor, he has to only examine but for this 39, the government would fall. I'd rather go for trust vote.

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CJI DY Chandrachud: Can he look into the fact that but for these 39 the government would fall when exclusion of these 39 is postulated on the speaker passing an order for disqualification?

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Justice Hima Kohli: It's a peremptory move. What is the apprehension the governor has?

SG Mehta: Trust vote is not against Shivsena, it's against Thackeray.

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SG Mehta: Suppose today BJP has 106 members and 100 members were to say that we've lost faith in the leader.

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SG Mehta: Would your lordships consider giving the governor the power to wait for floor test and ensure there is some management?

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CJI DY Chandrachud: You can never allow the governor to ask for a trust vote when there is absolutely nothing to shake the majority on the floor of the house.

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CJI DY Chandrachud: What is the trust vote for- Do you have the numbers in the house? The trust vote is not for determining who is to be your leader in the house?

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CJI DY Chandrachud: In a house of 288, you have 144. That's the purpose. If there's nothing to indicate that the 144 is disturbed, who will lead those 144 is alien to the governor!

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CJI DY Chandrachud: It may not have been Uddhav Thackeray. They could've elected someone else. The INC and the Sena could have said we're electing someone else. That is a matter for internal party discipline. That can never be for governor.

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CJI DY Chandrachud: Governor's trust vote is where the majority in the house is shaken. Where was there anything to indicate that?

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SG Mehta: Please see 47 MLAs writing to the governor- they didn't want to continue but were threatened.

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Justice Kohli: Mr Mehta, see the conclusion. They demand security. They don't say they're parting company. Where do they say that?

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SG Mehta: The governor is not a court where this prayer was not couched in this manner- he has to see based on material before him.

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Justice Shah: Mr SG, what is being said is that this communication cannot be said to be withdrawing support to Mr Uddhav Thackeray.

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SG Mehta: They say we no longer want to be a part of this corrupt government. 47 people are minus the magical mark!

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Justice Shah: They're not saying henceforth we're not supporting.

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Bench to resume post 2 pm.

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Hearing resumes.

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SG Mehta: It's not legislative party members showing lack of confidence in their party. They're saying that they're withdrawing support from government. That's the distinction.

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SG Mehta: Bommai holds this. That there is loss of confidence by this government. And he can, not just can, he should ask for floor test.

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SG Mehta: This is material which shows that they don't want to support the government and thus, they want security.

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SG Mehta: The governor in my submission would have jurisdiction once he has material. And what is that material? It need not be a letter also. Suppose it's in public media- it cannot be disputed. Can the governor not examine those facts also?

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SG Mehta: It need not be a prayer that please hold the floor test. They're saying that they've lost the confidence.

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SG Mehta: The subsequent decision of the Chief Minister not facing the floor test justifies the decision of the floor test- the government had lost the confidence.

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SG Mehta: It's not a luxury conferred upon the governor, it's a duty.

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SG Mehta: Here I'm being asked by the person who did not face the vote of confidence that why did you call for the vote of confidence!

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SG Mehta: It's not his right, it's his obligation to call for floor test. And as per me, the threshold is- Some material which creates a doubt in his mind.

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SG Mehta: And the threshold for my lordships would be- Whether there was any material. Whether based upon that material your lordships may have taken up a different view may not be the case.

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SG Mehta: Shivraj Singh Chouhan was a case of running assembly and in midst of that the Chief Minister lost his confidence.

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SG Mehta: Here, they specifically say in writing that they want to withdraw support.

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SG Mehta: He should not only command the confidence but continue commanding that confidence- that is the requirement of democratic functioning.

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SG Mehta: Outcome of trust vote is the ultimate litmus test of democracy.

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SG Mehta: It's only in extraordinary circumstances that there would be a departure from floor test- otherwise the floor test is the rule.

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SG Mehta: We say that defection is a sin. Running the government after losing the trust of the house is a larger sin to which the governor should not be a party.

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SG Mehta: Continuous existence of the trust gives you legitimacy in democracy.

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SG Mehta: Whether it's a floor test or a no confidence motion - the result is the same. Therefore, that can never be a ground for invoking your lordships' equity jurisdiction.

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SG Mehta: Any member can move a no confidence motion only when house is in session. The house was not in session. Second, it depends upon discretion of the speaker - it's not a right. Again, I'll be dependent upon the speaker.

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SG Mehta: Next session may be after months- we don't know. This threat, allurement, violence etc would continue.

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SG Mehta: Why did the governor call Shinde to call the government? Why not president of party? Governor knows only the elected leader of the house. He's not concerned with political parties.

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SG Mehta: Every party has a different infrastructure. For example, in some party the highest authority is a general secretary. In some there is a president. Governor would not enter into that.

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SG Mehta: Governor would only deal with the leader of the legislative party. And Mr Thackeray is not even a member!

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SG Mehta: This is a threat in public platform. Let us not lessen the gravity.

CJI DY Chandrachud: It's a law and order situation.

SG Mehta: It can be law and order but if it is created to bring pressure on the legislative process, then it's not just a law and order situation.

SG Mehta concludes his submissions.

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Sr Adv Kapil Sibal: I think that we seem to have been, we're somewhat innocent to the manner in which people are represented in the house and who the legislature owes duty to.

@KapilSibal

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Sibal: Under the Constitution, under A 170, people are directly elected from territorial constituencies.

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Sibal: When the election takes place and votes are counted, the returning officer gives you a certificate saying you've been elected.

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Sibal: Copy is the sent to ECI which conveys it to the speaker. The only identity of the legislator recognised in the house is that he is a member of the party. He has no other identity.

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Sibal: For example, there is a small party who has 5 members. 2 of them go to governor saying I won't support government. Will the governor call the floor test? Forget majority, even minority can topple the government.

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Sibal: We're back to 'Aaya Ram Gaya Ram'. Why? Because you say now your political affiliation doesn't matter, what matters is numbers. Democracy isn't about numbers.

@KapilSibal

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Sibal: What the legislators, speakers, governors recognise is the political party. And you're a member of the political party. Nothing less, nothing more.

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Sibal: You have no other identity. I'll tell your lordships why. How are governments formed? Largest single party who has majority - governor will call the leader. If that's not possible, second will come.

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Sibal: Then there is pre-poll alliance. Three, there is post poll coalition. Of what? Political parties.

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Sibal: Post poll coalition of political parties- which is what the Uddhav Government was. And the fourth is post poll alliance.

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Sibal: The governor under A 168 of the Constitution is not the member of the legislative assembly but he's part of the legislature. He can't recognise anyone other than a political party.

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Sibal: My identity is associated with my party. I have no separate identity.

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Sibal: Numbers in the house will not make governments fall. It is the alliance of parties in the house that will make the government fall. And that's the application of mind of the governor when he decides to ask for a trust vote.

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Sibal: See the havoc it'll cost. All you need to do is work up numbers. And they will say on public platforms that it is a call of conscience. We know the extent of their conscience.

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Sibal: All the counsels have not commented upon the concept of whip. I was surprised when Mr Kaul gave lordships a letter of Mr Sanjay saying it's actually the leader of the house who appoints the whip.

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Sibal: It's the political party that appoints the whip.

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Sibal: 34 of you sitting in Assam in the lap of the BJP will appoint Gogawale as a whip and then come to the court and say look we already appointed the whip! Under what power?

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SG Mehta: How is this relevant? In a rejoinder...

Sibal: My colleagues have argued for 5 days. I haven't uttered a word. So please allow me to argue in my own way.

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Sibal: Who are the political party recognised in the assembly? Shivsena. Who was the whip? Sunil Prabhu.

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Sibal: Whip has to be obeyed. Sunil Prabhu has to be obeyed.

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Sibal: How could the governor call Eknath Shinde? Who is Eknath Shinde? I'm talking in constitutional terms. Argument is that Shinde is group leader. Under which law?

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Sibal: You cannot give yourself the powers of the party. Sitting in Assam, being entertained by another party, publically saying that another party is fully supporting me and changing the constitution of the house as if you're the political party.

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Sibal: Mr Kaul argued that I am the party. He said I am the Shivsena. On what constitutional basis can 34 people say that they're the Shivsena? Are they recognised by ECI as Shivsena?

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Sibal: Shivsena is a recognised political party. How can Shinde say that I'm the political party? It has no constitutional basis.

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Sibal: Under Para 3 of tenth schedule which was deleted later, the expression is that if there is a faction in the legislative party, arising out of a split in political party, and that faction represents 1/3rd of legislative party- that will be a defence against disqualification

Sibal: He says we 34 are the political party, I am not a faction, there is no split. But when he goes to ECI, what does para 15 say- if there are 2 factions of political party who claim to be political party then ECI will decide which is the party.

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Sibal: Before you he says I'm the political party but before the ECI he says I'm the faction. Because if he is the political party, why is he going to ECI?

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Sibal: Take for example three people out of five belonging to Congress party. They're a majority. They go to governor of Goa and say I am the political party, we're the majority, topple this government.

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Sibal: What will the governor do? Governor as per their logic, will have to call for trust vote because Bommai said so. All judgements are contextual.

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Sibal: What has Shivraj Chouhan got to do with this? There is no bearing. We're dealing with 34 people which is a faction. It can't be a party. How did the governor recognise a faction? Under what constitutional parameters?

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Sibal: If you hold their submissions to be correct, you're bringing back the regime of Aaya Ram Gaya Ram. Because anybody can collect numbers in the manner in which they're collected nowadays, send them to another State, keep them in comfort and come back to topple the government

Justice Narasimha: You're saying 3/4th is also a split?

Sibal: That's correct.

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Sibal: They have argued they're the party. Not a single document right from 21st June till they file the petition- even there they don't say.

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Sibal: This is a mockery happening in our country. It's not about Maharashtra. It's about Meghalaya, it's about Manipur, it's about tomorrow UP- anything can happen anywhere. It's about our future!

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Sibal: They say violence etc- On 27th when they moved this court, a statement was made by Mr Kaushik saying that adequate steps have been taken and no harm is caused to life etc of the MLAs.

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Sibal: The very thing we wanted to prevent, happened. When you're lordships didn't grant the stay, fine, no issue. But we went to the ECI showing that it's subject to SC, please don't decide till that is decided. They deliberately misinterpreted the order

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Sibal: On 27th June, we're put in difficulty. On 29th June, we're put in difficulty. And when in Sept you passed this order, they misinterpreted.

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Sibal: They say that under the mandatory rules, 7 days notice ought to be given. How many days notice have they got now?

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Sibal: They've not filed a reply till date. 9 months.

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Sibal: This court said don't file reply by 12th July, was it 7 days? Is it fair of the court, I'm sorry to say, if that is the mandatory rule, we should have said 7 days from the date.

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Sibal: Then the argument is that this is fait accompli- Even if 16 had been disqualified, you'd still be minority. Mr Salve is right, that's all speculation.

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Sibal: See the injustice caused to us in this process. They don't file a reply. Now they say go back to speaker. There is no one fact which is not admitted.

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Sibal: From the beginning to the end, the whole process is clearly political.

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Sibal: Whip is appointed at the instance of political party and conveyed to speaker. How is governor talking about Gogawale being the whip? He's not concerned with it. That's the matter of the house.

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Sibal: If he is the Shivsena, where is the loss of confidence? There is no loss of confidence then. What he's doing is, he's recognising 34 people to be a faction and then on that basis he's saying there should be trust vote

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Sibal: He cannot recognise.

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CJI DY Chandrachud: Mr Solicitor, towards the latter part, he said that they said in their letter that we wanted to withdraw support from the MVA.

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Sibal: I will assume that, against me. That can happen in any situation. That is why the whole purpose of constitution only recognising political parties.

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Justice Narasimha: The difficulty arises in the emerging situation- suddenly during the process of existence of legislative assembly, there is this kind of dissent.

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Justice Narasimha: What has come out is that 34 have come to this side, this doesn't definitely reflect what happened outside.

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Justice Narasimha: But let's say the speaker- when this is placed before him, would he also take into account or merely adjourned the case and ask them to go back to ECI?

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Sibal: It is correct that this can happen but what is to be done?

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Sibal: There may be no dispute at all. What's the procedure? Go to the ECI. Can the procedure ever be to topple the government?

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Justice Narasimha: What happens in the interim? Suppose speaker takes prima facie view and says go to the ECI and tell me who is the political party.

Sibal: Speaker will not do that.

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Justice Narasimha: Then he proceeds to tenth schedule and all 34 will be disqualified.

Sibal: Yes, why not?

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Justice Narasimha: In a situation like this where more than 3/4th legislators have made a faction- it's the inevitable consequence that the faction which is in control of government will have speaker and disqualify them. There's no other alternative

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Justice Narasimha: Is there a difference between split and overwhelming majority?

Sibal: No, it's not recognised by tenth schedule.

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The hearing concludes for the day.

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