Thread by @barandbench

Constitution Bench of the Supreme Court to continue hearing the Maharashtra politics case involving the Uddhav Thackeray and Ekanath Shinde factions of Shiv Sena.

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SG Tushar Mehta for the Governor: I have seven points to submit

Justice MR Shah in Gujarati: One hour means one hour

Justice Shah: Gujarati so that letter and spirit is translated

SG: The points are..

Justice Shah writes down

SG: I am just saying.. need not write

CJI: We… twitter.com/i/web/status/1…

SG: Power under Article 174 to conduct floor test can be exercised only when govt is formed was dealt with Shivraj Singh Chouhan case and it is the good law

Why did Governor invite Mr Eknath Shinde and not interact with president of the party as to who should be invited...

SG: the governor is not determining that Mr Thackeray has lost confidence or not, He is just inviting him for the floor test to prove his majority

CJI: No. In fact he says in the letter that is confident already that @OfficeofUT has lost the confidence of the house

SG: No constitutionally the governor cannot do that. he is only saying this to justify his reasoning of calling him to face the floor test #MaharashtraPolitics

CJI: Simply put material before the governor was only 3 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; the letter by leader of opposition. Suppose there is a difference on a… twitter.com/i/web/status/1…

CJI: one whether governor has material to see that existing govt should face a floor test. Governor should not lend his office to effectuate a particular result... the mere fact that a floor test is called can also lead to precipitative action and toppling of the government. The… twitter.com/i/web/status/1…

CJI: Looking at hindsight UT faction lost the mathematical equation. They also knew that they were going to lose the plot. But we are on the power of the governor. We are very seriously concerned that governor should not enter into this area where his action will precipitate a… twitter.com/i/web/status/1…

CJI: Governors have mapower even after govt is formed but in using these powers, governors cannot precipitate falling of the government, It would be dangerous for democracy. Maharashtra is a highly cultured state..all these things that 40 dead bodies will come etc... is said in… twitter.com/i/web/status/1…

CJI: Monsoon session was coming and the supplementary demand was to be placed.. surest test was to check the majority there in... one disagreement in the revenue measures and you are out

SG: Please defer the tentative conclusion till i finish

CJI: This is our concern not… twitter.com/i/web/status/1…

SG: Governor has to see that a stable government continues that is all.. a democratically elected leader must face the floor test. Majority of the party did not enjoy this spectacle of the alliance

CJI: But the majority members then broke bread with the others for three years !… twitter.com/i/web/status/1…

SG: If there is internal dissent within party can the governor take a call in ordering a floor test. In Rameshwar Prasad this question was dealt with, it was held that governor has to prima facie satisfied that the govt has lost majority and be agnostic to 10th schedule… twitter.com/i/web/status/1…

CJI: As per me Governor missed out some very important things. So far Congress and NCP is concerned.. there was no internal shaking up there in and it is a block of 97 members. 97 continues to be a solid block, Now out of 56 which shiv sena had.. 34 went apart. So as on this date… twitter.com/i/web/status/1…

SG: Whether court would take same view which governor takes.. will not impact the decision taken by the governor. #MaharashtraPoliticalCrisis

Justice Narasimha: stark difference with Rameshwar is govt was not formed and instead of waiting a party to form majority.. a party was asked to face the floor test and he said he is not giving time since then the party would attempt to cobble up majority through coalitions etc… twitter.com/i/web/status/1…

CJI: Irrespective of the governor feeling anything about pre or post poll alliance. this is a validly formed govt and it was alien to the govt know that there were proceedings against the 34 and he cannot say that letter from these 34 will lead to shaking up the political… twitter.com/i/web/status/1…

SG: There are more than one reason why petitioners cannot argue this and court holds that governor cannot examine the inter se dispute.

CJI: One is dissatisfaction within the party and the other loss of confidence in the floor of the house. One is not indicative of another. So… twitter.com/i/web/status/1…

CJI: So governor must proceed with the information obtained... that govt is formed etc. There has to be something which alters the legal constitution of the government which is functioning. #MaharashtraPoliticalCrisis

SG: Can the governor say that he will wait for 15 days to take a call?

CJI: Then the governor goes to the point of disqualification.

SG: No

CJI: It is being said there is corruption in govt, discontent within cadre of party ... and that alliance is against core ideology of… twitter.com/i/web/status/1…

CJI: Governor is saying that but for the 39 govt will fall.. but can the governor pre suppose this.. it is dependent on the decision of the speaker

Justice Kohli: yes it is a preemptory move. what is the apprehension that the governor had?

CJI: How can you call the trust vote?… twitter.com/i/web/status/1…

CJI: YOU CANNOT ASK THE GOVERNOR for a trust vote when there is nothing to shake confidence in the government which is running. Trust vote is not to have a new political leader. Somebody else could become the head of the party. Governor has no business there till that number in… twitter.com/i/web/status/1…

SG: But the letter reads that they did not wish to be part of this corrupt government and that is how 49 was minus from the magical mark #MaharashtraPoliticalCrisis

Hearing to resume at 2 pm #MaharashtraPoliticalCrisis

SG: Members are saying they do not have confidence in the party. It is not as if the legislative party members breaking away from the legislative political party. Here they are withdrawing their support and that is the difference. #MaharashtraPoliticalCrisis

SG: Would the governor not be justified in forming an opinion that indeed the govt has lost majority... cannot a floor test be held. what can be the material which forms the basis of decision by governor.. #MaharashtraPoliticalCrisis

SG: This is my Constitutional submission. I hope it is not taken in any other way The threshold of your judicial review will be whether there was any material before the governor not whether the material was enough or not #MaharashtraPolitics

SG: 47 members saying that they want to withdraw support is sufficient ground for the governor to call for a floor test. #MaharashtraPolitics

SG: Only in extraordinary circumstances there can be no floor test else floor test is the norm. It has to be followed #MaharashtraPolitics

SG: Not taking vote of no confidence will not be a ground to invoke the equity jurisdiction of this court #MaharashtraPolitics

SG: Governor only says you hold a session.

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SG: Lordships are deciding this constitutional principle whether Governor could have... And they are saying floor test is the way. From Rajasthan till Shivraj Chouhan, position is that you cannot brook any delay.

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SG: They asked why Eknath Shinde was called and not party leader. Governor only has to call the leader in elected wing. There are parties where leader is someone but someone else is elected in house. Every party has different structure. Some there is a body. There may be dispute… twitter.com/i/web/status/1…

SG: If a law and order situation is being created to bring pressure on Legislature, then governor has to consider such threats to life. Cannot be taken lightly.

CJI: But this cannot be grounds to unseat a government.

SG: We are being threatened is not a reason, it is a… twitter.com/i/web/status/1…

SG: Their rejoinder is longer than reply.

Sibal: I had to respond to more weighty things. We are being somewhat innocent as to who the members are of the house.

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Sibal: Only identity of a legislator in the house is that he is recognised by the party. He has no other identity. That is the basic Constitutional concept. Forget about even 34, take eg of even 2 going to Speaker saying they do not support government and they can tilt the… twitter.com/i/web/status/1…

Sibal takes Court through Sarkaria Committee recommendations as to how Governor ought to invite parties to form government after elections.

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Sibal: Uddhav govt was a post poll coalition of political parties.

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Sibal: Governor is part of the Legislature but not a member of the Legislative Assembly. He can only recognise political parties. That is why we did away with Aya Ram Gaya Ram.

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Sibal: Allowing such (floor test) can have dangerous consequences for our democratic polity.

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Sibal: They sat in Assam, in the lap of the BJP appointed a whip. And in court then come and say we already removed you. Under what power?

SG: How is this relevant in Rejoinder?

Sibal: My colleagues went on for 5 days. I was silent.

SG: It will never be over. We curtailed… twitter.com/i/web/status/1…

Justice Narasimha: Simple point is whips are only appointed by the political party?

Sibal: Yes.

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Sibal: In Constitutional terms i am asking, who was Eknath Shinde? The leader under which rule? You cannot sit in Assam and say another party is supporting and seek change in composition of the house.

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Sibal: My ld friend Mr Kaul said I am the party, the Shiv Sena. On what basis? Are the recognised by the Election Commission. Shiv Sena is a registered political party.

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Sibal: It has no Constitutional basis. For 5 days my lords heard this, that there is no split but I am Shiv Sena. It cannot be.

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Sibal: If there are two factions of political party, Commission has to decide. Before my lords they say I am the party, before Commission they say a faction. He says no difference between Legislative and political party. That is a mockery of the 10th schedule.

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Sibal: all the judgments cited are contextual.

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Sibal: In a not a single document they have had said they are the party.

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Sibal: The very thing we wanted to not happen did. My lordships did not grant stay, alright. They deliberately misinterpreted, not ECI, the other side, saying this Court has said decide. And they got the symbol.

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Sibal: They are saying 7 days notice should be given ... They have not filed reply yet. Nine months? Is it fair of the Court, but if that is the mandatory rule then ... And then argument is it is fait accompli ...

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Sibal: If he is the Shiv Sena then where is the loss of confidence. What he is doing is recognising those 34 as a faction through a trust vote. Because fact is by law he cannot (be recognised) ...

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Justice Narasimha: Would the Speaker normally have to adjourn the matter and say go the ECI, and not decide till then ...

Sibal: It is correct that these things will happen.

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Justice Narasimha: what happens in the interim? Does Speaker proceed with 10th Schedule in a situation like this, all 34 get disqualified? Just asking.

Sibal: Yes.

SC: No other alternative according to you.

Sibal: whole purpose is that.

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Justice Narasimha: Is there not a difference between split and overwhelming majority in a party?

Sibal: Law does not recognise.

Justice Narasimha: What does Kihoto say on this?

Sibal: It does not.

Hearing to continue tomorrow.

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