Bench assembles.
Singhvi starts.
Singhvi : I have 7 or 8 points.
Justice Kant : What is the name of your party?
Singhvi : Sunil Prabhu, Writ number...
Singhvi : The letter which tells us about the floor test, it says on June 28, the opposition leader met the Governor, and today morning we received the intimation about the floor test tomorrow. As a matter of fact, 2 NCP MLAs are down with Covid, one Congress MLA is abroad.
Singhvi : There is super sonic speed for the floor test.
The floor test determines which Govt represents the will of the people. A floor test is supposed to find out the true majority. True majority will include those eligible to be included.
Singhvi : It is akin to saying Election Commission holding election saying that the electorate will include dead people or people who have moved out. If it is done without determining if A,B, C D are disqualified, the pool in which the floor test will be held will change.
Singhvi : The size of the pool will depend on whether people have committed the Constitutional sin of defection. If the Court is to dismiss the petition of Eknath Shinde, but everybody has voted tomorrow, and decision on who can vote is dependent on Court's decision on 11th..
Singhvi : Will it not amount to putting the cart before the horse, if voting is allowed to proceed without determining who all are eligible to vote? Everyone knows the Court is seized of the matter.
Singhvi : Governor, with due respect to him, cannot short circuit and render irrelevant this Court's proceedings and the eventual proceedings of the Speaker.
Justice Kant : How will the questions become irrelevant?
Singhvi : Suppose the writ petition is dismissed, and Speaker holds them disqualified, how will the Court reverse tomorrow's floor test?
Justice Kant : Is there a minimum time for floor test? Is there a constitutional bar in holding a fresh floor test?
Singhvi : Yes, floor test cannot be normally held without an interval of 6 months.
Justice Kant : Is there a constitutinal provision?
Singhvi : I wil get back to your lordships query. Normally the vote of confidence can't be held without 6 months interval. Look at the balance of convenience otherway round..
Justice Kant : How does the floor test depend upon the qualificaiton or disqualification issue?
Singhvi : It is directly interrelated. Court has held that disqualification once found by Speaker relates back to the date of disqualification. These MLAs would stand disqualification on 21st when they complained to Speaker. So they cannot be treated as members from that date
Singhvi : Court might be allowing people who are disqualified from June 21 to vote.
Justice Kant : There are 2 situations. One where Speaker has actually passed the orders and they are pending judicial review. The other is where Speaker initiated the process and some one has
Justice Kant : ...approached the Court questioning the competence of Speaker. Is it your case that in the second situation the disqualificaiton is deemed to have happened.
Singhvi : Yes, the fact that the Court has interdicted the process, then the persons who sought the stop
Singhvi :...cannot have it both ways. 10th schedule represents a Constitutional Sin.
Justice Kant : We are all unanimous that 10th schedule is a robust provision and that we should strengthen that. No doubt.
Singhvi : Absent your lordships deferment, Speaker would have decided this way or that way. And it would have been with effect from June 21/22. They cannot be treated as Members from inception. This is a cart before horse situation.
Justice Kant : This Court extended time in the exceptional circumstance that the petitioners have sent a letter that the Dy Speaker is not entitled to hold the office and that you have lost majority. In that circumstance, the order was passed.
Singhvi : I am about to cite a case which my friends are inching to site quoting my arguments against myself.
Singhvi : My question to myself is, once your lordships have intervened, how does anybody set it right if the Government is voted on a person who is disqualified from June 21.
Singhvi quotes Rajendra Sing Rana case : "The fact that a decision in that regard may be taken in the case of voluntary giving up by the Speaker at a subsequent point of time cannot and does not postpone the incurring of disqualification by the act of the Legislator".
"The fact that in terms of paragraph 6 a decision on the question has to be taken by the Speaker or the Chairman, cannot lead to a conclusion that the question has to be determined only with reference to the date of the decision of the Speaker" - Singhvi quotes from decision
Singhvi : If Speaker was allowed to decide, these people who are going to vote tomorrow are not members. This cuts at the root of the democracy. These people cannot be allowed to swim in the pool, that too in a irreversible manner.
Singhvi : Firstly, there is undue haste and hurry. Governor has to act on the aid and advise of the Chief Minister. Whether he does it or not, he certainly cannot act on the aid and advise of the Leader of Opposition.
Singhvi : This apprehension was expressed that day and your lordships gave us liberty to approach in that case. And we have approached faster than expected.
Singhvi : Your lordships have held in 3 cases that act of going to the Governor and complaining about your party by itself is an act of voluntarily giving up membership.
Singhvi reads out letter given by 34 rebel MLAs to Governor. "This itself amounts to giving up membership as per SC decisions", he says.
Singhvi refers to Ravi Naik decision and says.- A person to give up membership does not need to say it expressly.
"Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs".- Singhvi quotes from Ravi Naik decision.
"The act of giving a letter requesting the Governor to call upon the leader of the other side to form a Government, itself would amount to an act of voluntarily giving up the membership of the party " - Singhvi quotes from Rajendra Singh Rana decision
Singhvi : My learned friends got a stay from your lordships and they think they can do anything with the 10th schedule.
Justice Kant : Are you disputing that 34 members of your party have not signed the letter?
Singhvi : There is no verification. Governor keeps letter for one week. He acts only when the Leader of Opposition meets him.
Justice Kant : Why should we suspect Governor's satisfaction?
Singhvi : Every action of Governor is subject to judicial review. Bommai has held.
J Kant : Our limited understanding of Bommai is that these issues cannot be left to the subjective satisfaction of Governor and should be left to floor of the hosue.
Singhvi : There is no case so where a disqualification proceeding is interdicted by the Court and the floor test is announced immediately.
Justice Kant : Suppose, in a hypothetical situation, a Government knows it has lost majority, and it has used the Speaker to issue disqualification notices, what should the Governor do? Can he exercise his discretion?
Singhvi : The hon'ble Governor could not or did not attempt any verification. He recovered from COVID just two days ago. We wish him good health. The resolution sent to the Speaker was rejected as the authenticity is not verified and it was sent from unverified email.
Singhvi : These people go to Surat and then to Guwahati after sending an unverified email that they have no trust in Speaker. That is misue of Nabia judgment. To disable the Speaker from exercising 10th schedule power.
Singhvi : While it is waiting for adjudication before the Court, how can the Governor, who just recovered from COVID, after a meeting with the Leader of Opposition, asks for floor test the next day? Will it not blow 10th schedule to smithereens?
Singhvi : The people who have changed sides and defected cannot represent the will of the people. Can't the Governor trust the Court to not call a floor test tomorrow? Will heavens fall if there is no floor test tomorrow?
Singhvi : Is it not making a mockery of all this law, Constitution Bench decision and 10th schedule?
J Kant : Is it on facts that they have sent a letter asking for a govt to be formed by the opposition?
Singhvi refer to Kihoto decision."The object of 10th schedule is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy"
Singhvi cites decisions on judicial review over Governor's decision
Singhvi : What is the scope of immunity of Art 361? They are bound to cite it. 361 only means Court will not make Governor a party and issue notice to him. That is why we take care to make Secretary a party.
Singhvi : The personal immunity from answerability under Art 361 does not bar the examiniation of mala fides.
Singhvi : All the other cases are of simple floor test. There is no intersection with disqualification. Those were simple cases with no imminent disqualification.
Singhvi: The judgments which I am citing are simple cases of floor tests not cases where milords had to consider the pool voting, was any one disqualified, etc.
Sr Adv Neeraj Kishan Kaul starts submissions for #EknathShinde.
Kaul refers to Nabam Rebia decision to say until Speaker's removal is decided, disqualification cannot be decided.
Kaul : First and foremost it is to be decided if the Speaker has to be removed or not.
Kaul : It is not a question of Court interdicting, it is question that you cannot deal with the matter as your competence is questioned.
Judges are discussing among themselves.
Kaul : It is well settled that a floor test should not be delayed. Merely because of pendency of proceedings relating to whether MLA has resigned or 10th schedule is no ground to interdict floor test. Supreme Court has held both are distinct issues.
Justice Kant : The slightly different argument by the other side is that the proceedings are not voluntarily kept pending by the Speaker but are stopped because of orders of the Supreme Court.
Kaul : I will respond to your lorship's pertinent observation. When we came to court, an overwhelming majority was with us. We also write to Speaker that you don't enjoy the majority of the house. On 24th Speaker gives us disqualification notice. In this background we came here
Kaul : It is not as if your lordships are interfering with the proceedings. My principal argument was that Speaker has no authority. That is settled by Constitution Bench judgment.
J Kant : This argument suggests that first of all we should determine the competence of Speaker
Kaul : Supreme Court says disqualification proceedings have no bearing. Floor test is the healthiest thing that can happen in a democracy. SC says the moment a Chief Minister shows reluctance, it prima facie gives the view that he has lost the confidence of the hosue.
Kaul : This is an area carved out for the discretion of the Governor. Unless the decision of the Governor is held to be grossly irrational or malafide, there can be no interference. Independent MLAs have written to him.
Justice Kant : Hypothetical question we asked Singhvi, slightly different one we ask you. Who are competent to participate in the floor test?
Kaul : Argument is that tomorrow if they get disqualified, the pool will get smaller. SC says, disqualification has no bearing.
Kaul : My learned friend wants both to be co-related. There cannot be correlation. Shiv Raj Singh decision was sought to be distinguished, but it was a case of resignation.
Kaul : They are in a hopeless minority within the Party itself, forget the house.
Justice Kant : Hypothetical question we asked Singhvi, slightly different one we ask you. Who are competent to participate in the floor test?
Kaul : Argument is that tomorrow if they get disqualified, the pool will get smaller. SC says, disqualification has no bearing.
Kaul : My learned friend wants both to be co-related. There cannot be correlation. Shiv Raj Singh decision was sought to be distinguished, but it was a case of resignation.
Kaul : They are in a hopeless minority within the Party itself, forget the house.
Kaul : I have seen everyone keen to take the floor test. I have seldom seen a party so afraid to conduct a floor test.
Kaul refers to Shivraj Singh Chouhan case where Supreme Court in 2020 ordered floor test in MP Assembly.
Singh : By refusing their prayer, your lordships will be meeting the objectives of 10th schedule. The writ petition is filed with support of 16 out of 55.
Justice Kant : We don't think the matter will become infructous. Suppose if we find later that floor test was conducted without authority, we can annul it. It is not an irreversible situation.
Singh concludes.
Solicitor General now appears for #Governor.
SG : First of all, the argument that your lordships have interdicted the Speaker is wrong. It is not the lordship's order but the law which has interdicted him.
SG reads Nabam Rebia.
SG : Your lordship asked if the office of the Speaker can be misused when the Govt loses majority. One can always ask some member to present disqualification petition and I as a Speaker can decide the electoral college. So I will be deciding who will be voting on removal
SG : Speaker cannot decide his voters list. Speaker cannot decide his electoral college.
SG : Your lordships have not interdicted the Speaker. The Constitution Bench's writ interdicts him. Having cleared that doubt, I could not understand how my order is bad.
SG : The parameters for challenging #Governor's order are not met by the petitioners.
SG : Your lordships have not interdicted the Speaker. The Constitution Bench's writ interdicts him. Having cleared that doubt, I could not understand how my order is bad.
SG : The parameters for challenging #Governor's order are not met by the petitioners.
SG reads the order of #Governor
@BSKoshyari
SG : Your lordship's question to the petitioner was that are you disputing 39 MLAs your majority. They said they have no means to verify. Truth comes up but.
SG refers to the undertaking given by Maharashtra Counsel on June 27 to protect 39 MLAs, which was recorded in SC order.
SG refers to a media report regarding threats issued to 39 MLAs.
Justice Kant : These kind of emotional statements....
SG : Governor cannot ignore these aspects.
SG : Dy Speaker gave two days notice. Now the same person is asking why 24 hours notice for floor test.
SG : The #Governor has taken into consideration various letters sent to him. The Governor in totality is satisfied, based on relevant materials, that you have to immediately go to the floor of the house.
SG : In the absence of anything pointed out that the #Governor decided based on extraneous circumstances or irrelevant material, your lordships will not intervene.
Singhvi now makes rejoinder.
Singhvi : A caricature is made out of my arguments. There has never been a single case where the hands of the Speaker was tied.
Singhvi : When my left hand is tied from tenth schedule, and the right hand is asked to do floor test, the argument cannot be that the floor test is essential to democracy.
Singhvi : Nabam Rebia is decided that in that case Speaker cannot decide. If Nabam Rabia allows, their writ stands allowed on first day. Nabam specifically notes at para 167 that it is not a case of #FloorTest, yet it is cited again and again in a floor test case.
Singhvi : The questions that we raised that was that motion for removal of Speaker under Ar 179 can be moved only when assembly is in session. The second thing, 179 uses "removal". So there has to be a charge against Speaker. No single charge is mentioned in that letter.
Singhvi : It is repeatedly argued that the Speaker is always suspect but the #Governor is a holy cow. That Governor can never be wrong, but the Speaker, the persona designate under 10th schedule is political.
Singhvi : Those who believe that the Speaker is only political and #Governor can never be political, I tell them, wake up and smell the coffee, don't live in ivory towers.
Singhvi : This is a Governor who has not allowed nominations to MLC for one year.
Singhvi : Does the #Governor have a single sentence in the order that the issue is sub judice before the Supreme Court and despite that I am exercising? No. No consideration of relevant aspect.
Singhvi : Has #Governor attempted to verify? Two days before he comes to Raj Bhavan, meets the leader of opposition yesterday and issues the order today. But the Speaker is to be always a suspect!
Singhvhi : Governors are not angels. They are humans. It is why we have Bommai decision. Governor does not address the issue of subjudice. He does not verify. He does not call the CM for his view. I am not saying he is bound. But he does not call.
Singhvi : Please look at the real world. A Floor Test done tomorrow, followed by a disqualification to be proceeded by the Speaker, is irreversible. We cannot live in a theoratical world. It is irreversible.
Singhvi : And the Shivraj Singh Chauhan decision applies only if there is no fetter on the Speaker. Floor test and disqualificaiton are undoubtedly related after your lordships have put a fetter on the Speaker.
Singhvi : If Nabam Rabia is applied literally, then 10th schedule is ended. Because a defector can always send a resolution to remove Speaker and get away If it is applied like a Gita or Bible without considering the facts, then there is no 10th schedule.
Singhvi : This is a question of balancing competing equities. Either defer the floor test for a week or prepone the other matter, that is the only way to balance.
Singhvi : Is it not a strange case that they have not challenged the Speaker's rejection of their resolution?
Singhvi concludes.
Kaul : May I take a second.
Singhvi : There is no sur-rejoinder.
Singhvi : May I ask who Mr.Kaul is appearing for? (Singhvi says Governor's Secy, Assembly Secy, State of Maharashtra and Union Govt are parties)
Kaul : You don't add necessary parties in the petition.
Bench concludes hearing.
Justice Kant : Give us some time to deliberate.
Bench will pronouce the orders at 9 PM today.
SC: Not staying tomorrow’s floor test. But it will be subject to outcome of present writ petition.
MVA govt will face floor test in Maharashtra Assembly on Thursday. SC bench of Justices Surya Kant & J B Pardiwala refuses to interfere with Governor's direction to Uddhav Thackeray-led SS-NCP-Cong ruling coalition to prove majority in Assembly on June 30, with voting at 5 pm.
