Thread by @LiveLawIndia

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

Follow this thread for live-updates.

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Read more about yesterday's proceedings here-

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Also read about remarks made by the bench concerning the role of the Governor in yesterday's proceedings here-

livelaw.in/top-stories/sh…

Read more about submissions made by Senior Advocate Kapil Sibal, appearing for the Thackeray faction, in his rejoinder here-

livelaw.in/top-stories/ac…

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Senior Advocate Kapil Sibal: Please see Article 180(1) and (2). In the context of these, look at para 6 of the tenth schedule.

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Sibal: There can be no hiatus. The disqualification proceedings do not stop. That's my first submission. They haven't answered it.

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Sibal: Someone else would have presided for the disqualification and decided. That's why the Nabam Rebia judgement is wrong.

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CJI DY Chandrachud: What's the ground for removal?

Sibal: No ground!

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Sibal: This is what the Governor fid- 34 of them have come to me and I recognise them. The governor can only deal with alliances and parties. He cannot deal with individuals. Otherwise there will be havoc.

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Sibal: The governor based his decision on the claim made by a majority of Shivsena. On what constitutional basis can the governor recognise a faction, whether minority or majority, to hold a floor test?

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Sibal: The para 3 dealt with factions. An argument to say that I am the party is contrary to constitutional framework. Because he's not a party. The party is registered under S 29 of RPA.

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Sibal: That proposition, that he is the party, is unfounded in constitution.

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Sibal: There's no reference or mention of split.

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Sibal: The constitution doesn't recognise any faction whether there is a majority of minority. When I seek elections directly from electorate, I don't seek it in my personal capacity. I seek it under the symbol of the party.

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Sibal: In the relationship between the legislature and political party, the political party has primacy.

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Sibal: The will of legislators is subject to the functioning of political party both inside and outside the house. He can have dissent outside the house but not inside the house.

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Sibal: There is no space for factions when the governor has to appoint a CM. Now if all of Shivsena had gone to BJP, the Governor would have called for floor test - if Shivsena itself went.

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Sibal: That's the Aaya Ram Gaya Ram principle we gave up! It's disastrous for the democracy. The propositions advanced by them are contrary to basic principles of constitutional law.

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Sibal: The legislator has no identity other than being a representative of the political party.

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Sibal: The governor's acts placed a premium on the unconstitutional acts of the faction, allowing them to topple the government. He knows. He went outside the scheme of the tenth schedule.

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CJI: Acc to you, there's a split which is not recognised. But there's a group of legislators who say they withdrew support. They'll incur a disqualification. Can the governor not then look at the numbers and say that this conduct also affects the strength of the house?

Sibal: No, this used to happen when the tenth schedule was not there! So we're going back to a time with no tenth schedule

CJI: So you're saying Governor cannot call for trust vote oblivious to provisions of tenth schedule.

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Sibal: Forget tenth schedule. He cannot call for trust vote based on a faction. Calling for trust vote is based on alliances.

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Sibal: They could have followed the Madhya Pradesh model.

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Sibal: Suddenly they decide that they're all gonna resign?

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Justice Narasimha: This argument could sometimes be dangerous also because there is absolutely no freedom in the party except for one leader. Many a times it's one family which runs it.

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Justice Narasimha: There's no scope for anybody else coming into the frame. You're interpreting the constitution to say that it's just not possible for any legislator...

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Sibal: This is my grievance. What happens in the US and the UK - a president of the Republican party will reach out to Democrats to get a bill passed.

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Sibal: Barack Obama had to reach out to republicans for his insurance bill.

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Sibal: Party reaches out to opposition. There is no such thing as defection. This is the problem.

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Sibal: But we're in another era. We're going back to Aaya Ram Gaya Ram.

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CJI DY Chandrachud: So according to you, going back to Sarkaria Commission report, this was a post electoral coalition party with support of independents. So according to you it's only if a member of alliance shift, governor can call floor test.

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Sibal: Absolutely. He's not concerned with tenth schedule. It has nothing to do with Governor.

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Sibal: When we enter this court room we're in a different aura, we come with hope, expectations. If you look at history of civilization, all injustices are based on power.

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Sibal: You are the hope of 1.4 billion people. You can't let democracy be destabilized in this callous, uncouth fashion.

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CJI DY Chandrachud: So you're saying the governor cannot have regard to any individual movement of a group or a number of MLAs or MPs.

Sibal: Exactly, that's Bommai!

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Sibal: These decisions are contextual. There is no general rule. Freedom of speech is contextual. How you recognise it is the context.

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Sibal: The Governor is now looking at intra party dispute. He cannot look at intra party disputes.

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CJI DY Chandrachud: The only problem is that the basic principle of parliamentary democracy is that government has to be accountable to and must have the faith of the house.

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CJI DY Chandrachud: Now suppose government has x number of legislators. Take a case where x divided by 2 say we have no faith in this government. They say okay we'll incur disqualification but we don't have faith.

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CJI DY Chandrachud: Now going by your logic, the governor can never call a trust vote because he'll say look you've been elected as members of the house, you can't say you've lost faith.

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CJI DY Chandrachud: In which case the government now only has x by 2 of its confidence, the government has to continue. It's basically reduced to a minority.

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Sibal: The session is on. Finance bill is to be passed. Vote against it. The government will fall. What is the problem? What they want is, they want to topple the government, become CM- this isn't constitutionally permissible.

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Sibal: The governor cannot assume that they've lost majority therefore there is no accountability. That's not permissible as far as the governor is concerned.

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Sibal: Prime Minister Narasimha Rao ran the minority government. It's not as if government can't be run by minorities. Point is they don't want to lose membership of the house.

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Sibal: I don't have to say more. My political experience and your judicial experience is enough to understand this. We've reduced ourselves. We're mocked. People don't believe us anymore.

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Sibal: Neither the Governor, nor this court can impinge upon the functions of a speaker. The speakers functions must continue.

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Sibal: When Bommai was decided, what did Bommai say? It said, we have restore the status quo. Shivraj Singh Chouhan also said this.

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Sibal: That's how Arunachal was decided when it was decided. Status quo ante was restored. It also happened in Uttrakhand- when this court restored the CM by setting aside the order of governor.

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Sibal: What's the point of now saying that these consequential acts have happened so you have no judicial remedy, even if the act is illegal?

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Sibal: Who is he recognising? Leader of what? The governor can only deal with the legislature party. He cannot pick up Eknath Shinde and say now you become the CM.

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Sibal: It's like saying that the party is registered with the ECI, the leader is communicated to the ECI, but I as a Governor will pick up a leader contrary to what is communicated to me.

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Sibal: The cat is out of the bag. He is saying that outside the Constitution, outside the principles of constitutional law, a faction in the legislative party should be recognised as a political party- without going to ECI, without registering - what political party?

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Sibal: Disloyalty is for a price which has secured him the position of the Chief Minister.

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Sibal: They made an argument yesterday- how could the whip act outside the house? What were they doing in Assam? You're sitting in Assam in the lap of the BJP and you are displacing a whip who is recognised by the political party

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Sibal: You say I continue to be the leader. On what ground? You were removed on 22nd. How are you the leader?

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Sibal: In constitutional law, members of the legislature can never be given primacy over political party.

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Sibal: Nabam Rebia doesn't take into account the ambit of Article 179 of the constitution and the concept of removal under Article 179.

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Sibal: This has severe consequences. I am holding an office- a parliamentary office. And I'm removed by a letter? Without giving any reasons?

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Sibal: The history of this court is the history of celebration of values of Constitution. There have been occassions like ADM Jabalpur which is in dissonance with what this court has done over years.

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Sibal: This is an equally significant case. It's a moment in the history of this court where the future of democracy will be determined.

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Sibal: I am absolutely certain that without the intervention of this court, we will, our democracy will be in danger because no government will be allowed to survive.

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Sibal: It is with that hope that I make this plea to your lordships to allow this petition and set aside the order of the Governor. I'm obliged.

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The bench will resume hearings at 2 pm.

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SG Mehta: There are some new points raised by Mr Sibal, so allow me to file summary of my arguments.

CJI DY Chandrachud: If you want you can make the point in their presence in 5 mins.

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SG Mehta: Let Dr Singhvi complete then I'll say...

Dr Singhvi: That's going to be a sur-rejoinder. Your lordships should allow for a note.

CJI DY Chandrachud: We thought allowing a note would be prejudicial to you.

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Sr Adv NK Kaul: Please let me just say this in 2 mins. Bommai was a case of two parties merging and a few MLAs withdrawing support.

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Kaul: This is a flawed argument from the other side as if there is some alternative mandatory mechanism provided.

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Kaul: Nabam Rebia specifically deals with A 179(3) and removal. It's incorrect to say that Nabam doesn't deal with removal at all.

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Kaul: The party means legislature party.

SG Mehta: The leader conventionally is elected by members of legislature.

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@DrAMSinghvi : It cannot be argued that the leader is appointed by legislative party. It will turn parliamentary democracy on its head.

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Singhvi: Your lordships have to go back to the tenth schedule. The tenth schedule has two components. One is a prohibitory negative code- what you shouldn't do.

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Singhvi: But there's also a positive code. What the tenth schedule does is that it strikes balance between negative and positive.

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Singhvi: The negative code in a nutshell is that you will not violate whips and voluntary give up membership.

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Singhvi: What is the affirmative? You're entitled to dissent within limits, a zone. Before tenth schedule there was jungle raj- aaya Ram Gaya Ram. You can justify that too by free speech then.

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Singhvi: The positive part is- one is split, second is merger, third idea of tenth schedule is resign and recontest.

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Singhvi: If you're so much for free speech, you say this is a rotten party- then resign and re-contest!

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Singhvi: If you absolutely hate where you are, go to the Election Commission and start your Para 15 proceedings and say you're the real party.

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Singhvi: Here, you don't resign, you don't go to the ECI up until much later, you don't seek condonation. What you do is a three step novel procedure to annihilate the tenth schedule.

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Singhvi: Step one is you disable the speaker by a mere notice. Step two is to forward resolutions parallely to the Governor. Step three is the act of being sworn in as Chief Minister with another party fully supporting in whose lap you were in Guwahati.

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Singhvi: What happens if between me, that is them, applying to the EC and speaker disqualifies me? So what? Why was the tenth schedule made? Second answer is it he disqualifies you wrongfully, approach judicial remedy.

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Singhvi: What they're doing is- I'll not go to the speaker but I'll go Guwahati because I'm scared of disqualification.

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Singhvi: I know of very few cases where you have the courage and conviction to resign.

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Singhvi: Let's say I resign and the speaker rejects my resignation and disqualifies me. There is same remedy for that too.

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Singhvi: Why did the tenth schedule come? The purpose is that you have come through a party seat. You go and face the electorate again, whether with that party, independent or with another party.

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Singhvi: Then in every case of defection I can say I won't resign, I won't go to the EC, I won't merge.

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CJI DY Chandrachud: Merger was not an option because it's not their case. Merger means that their political identity as Shivsena is gone. Your argument is problematic because you're saying they have to leave now. They're saying they don't want to leave, they're Shivsena.

Singhvi: The fact that you choose not to exercise an option, doesn't mean that the option doesn't exist. The option exists constitutionally.

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Singhvi: Everyone has dissent- every political party. But there are enough in built mechanism to deal with it. Dissent in party can be dealt with on appropriate fora. Or you resign.

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Singhvi: But how can you say that because of a mere disagreement I'll topple the government?

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CJI DY Chandrachud: When will governor call for trust vote?

Singhvi: The governor has no role at all. First answer is when the government is about to be formed. Governor will never come in tenth schedule. It's an intra party issue.

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CJI DY Chandrachud: The three steps you told us, in that you can add one more step which is the governor's trust vote communication.

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CJI DY Chandrachud: One way to look at it is that the Governor had material to call for trust vote, in which case you can ask what was the basis for picking Shinde? Second is there was no valid material.

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Singhvi: Yes and that goes to the heart of the matter.

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CJI DY Chandrachud: Really the question that arises is whether there was a valid exercise of power by the governor to call for a trust vote. What happens if we say there was no valid exercise of power?

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Singhvi: Everything falls.

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CJI DY Chandrachud: So according to you we do what? Reinstate? But you resigned.

Singhvi: My resignation is irrelevant.

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CJI DY Chandrachud: That's like the court being told that you reinstate a government which has resigned.

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Justice Shah: How can the court reinstate the CM who did not even face the floor test?

Singhvi: Your lordships aren't reinstating anyone. Your lordships are restoring status quo ante.

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CJI DY Chandrachud: No, but that would've been a logical thing to do provided that you had lost the trust on floor. Because then clearly you've been ousted from power based on trust vote which is set aside.

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CJI DY Chandrachud: Look at the intellectual conundrum. It's not that you've been ousted from power as a result of trust vote which was wrongly summoned by government. You chose not to face it.

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Singhvi: That is a red herring. I'll come to that.

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Singhvi: The illegal act of the Governor is a prior pending sub judice challenge before the trust vote.

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CJI DY Chandrachud: So you're saying that Mr Thackeray resigned only because he was called upon by the governor to face the trust vote?

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Singhvi: I'm grateful. After I filed the petition, after I made it sub judice, and after I said its completely unknown to law and don't allow it to go on.

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CJI DY Chandrachud: You're frankly accepting the fact that you resigned because the trust vote was going to go against you.

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Singhvi: When you do an illegal act, the consequence is known to me.

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Singhvi: The CM's participation or lack thereof will not dilute the illegality. If it's illegal, it's illegal. How does my non participation validate the act of governor- this is the core question.

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CJI DY Chandrachud: So you're saying that Article 189 recognises a de facto doctrine. What it does is to legitimise the acts of an authority whose original appointment is found to be invalid. But that doesn't validate the original appointment

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Singhvi: The consequence of an illegal origin cannot validate an illegal origin.

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Sr Adv Devadatt Kamat: The term political party is not an indeterminate concept. There may be factions claiming they're political party. But in 21st June, there was only one political party, headed by us.

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Kamat: Only political party can issue a whip. Rule 3(1) doesn't deal with the whip. That's the convention.

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Kamat: Having a legislative majority ipso facto or ipso jure is not indicative of having majority. ECI has said we have to see organisational majority.

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Kamat: Out of 220 Partinidhi Sabha, 160+ have supported me.

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Kamat: Time and again, my learned friends have said that we've never claimed a split. Kindly see their submissions before the ECI. ECI says it's evidenced that there is a split in Shivsena. Their written submissions say there is a split.

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Kamat: The crow is also black, the cuckoo is also black. Who is the Shivsena here? At time of judgement, it'll be clear who is the real shivsena.

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CJI DY Chandrachud: Our compliments to everyone, the juniors too.

Hearing concludes.

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