Subhash Desai v. Principal Secretary, Governor of Maharashtra and Ors.

W.P.(C) No. 493/2022

Transcript of Hearing Dated: 21-Feb-2023

CHIEF JUSTICE CHANDRACHUD: So just for the information of all the members of the Bar, you'll see that a screen is there. So we are just trying to explore with the possibility of live transcription of arguments.

MR SIBAL: That's wonderful.

CHIEF JUSTICE CHANDRACHUD: We had to do it in a live environment with an experiment so we'll just see how it works, at least in the Constitution Bench matters. Because then we'll have a permanent record of arguments. Of course it helps the judges and the lawyers, but it will also help our law colleges.
00:00:15 They can analyze you know how matters are argued, what was submitted. It is a huge resource.

MR SIBAL: We'll also get to know Nabam Rebia was argued My Lord. No I say this in a lighter way, only in a lighter vein.

CHIEF JUSTICE CHANDRACHUD: We are already there.

You know why we are telling, Honorable Chief Justice is telling is –

JUSTICE SHAH: Don't interrupt each other. Otherwise that will be difficult. Argue one by one. One at a time.

MR SIBAL: My Lords, in posterity we will get to know what foolish arguments we've made my lords.

00:00:45 But we'll of course, this will be a great record for the...

MR. SIBAL: No, no, I think it is a wonderful idea.

JUSTICE NARASIMHA: Truly a court of record.....because every word is recorded.

MR SIBAL: It should be, it should be.

JUSTICE NARASIMHA: Every word is recorded.

MR. SIBAL: My lords in fact, I can share something with you.
00:01:00 When I was of practicing in New York, we had these EBT proceedings, that is Examination Before Trial. And I'm talking about this, about the 70s. 00:01:15 My Lord they would record everything that was said in the course of that examination even then, so that we know, lawyers knew what was going to happen.

MR. KAUL: Gujarat has e-courts my lord in the sessions division, Sessions Court. There even our internal whisperings are also recorded.

MR SIBAL: That is very dangerous. That is hazardous, completely hazardous.

CHIEF JUSTICE CHANDRACHUD: Now the only thing is that if there are two or more voices at the same time,
00:01:45 that causes little bit of a problem. But they obviously have personnel who will clean up the errors by the evening. They suggested that during the course of the day the Counsel will get the link. So the counsel can look at it. By the evening they would have cleared up the... 00:02:00 cleaned up the entire transcript and given it to us.

MR. SIBAL: That's wonderful. That's wonderful. That's truly, truly a milestone, I would say my Lords. A milestone my lords.

JUSTICE NARASIMHA: In VC proceedings, anybody wanted to interrupt,
00:02:15 would lift their finger. So much there is no cross talk. So we can follow that so that it won't overlap with one another.

MR. SIBAL: Hopefully.
00:02:30 So My Lords, let me just give Your Lordships a birds eye view of what is in issue here, then I'll go on to the matter in some detail. My Lords as Your Lordship knows My Lords, 00:02:45 what is in issue is whether the legislative party, that's the central issue, whether the legislative party in 00:03:00 the House acts independently of the political party. That's the central issue. 00:03:15 Because I will, My Lords, while I go through the facts before Your Lordships, indicate to Your Lordships that on the 21st of June when the first meeting took place, 00:03:30 and we called the group led by Uddhav Thackeray, called members of the legislative Party who belonged to now the 00:03:45 Eknath Shinde group to come and attend the meeting, which was not done, pursuant to which, My Lords, some actions were taken. The contention throughout has been 00:04:00 that there is a split in the party. So the issue before Your Lordships is - can members of the Legislature within the House or comprising of those members of the 00:04:15 House by themselves say that there is a split in the party because they don't agree with the leadership? 00:04:30 This in turn would require Your Lordships to look at the Tenth Schedule and 00:04:45 in that context interpret the role of the party within the legislature. My Lords, after all, members of the Legislature of any particular party 00:05:00 come, get elected on a symbol of the party. They are there because of the party. And if they are there because of the party My Lords, they are, there is an umbilical cord link between them while they are sitting in the house and the party outside. 00:05:15 Can that link be severed and say we are an independent set of people, we can do what we like. That will require my lords the 00:05:30 interpretation of the Tenth Schedule. Require Your Lordships to analyze the role of the whip, how a whip gets appointed, how he happens to be a 00:05:45 bridge between the Legislative Party and the political party and that nothing happens in the House without the political party taking a decision. Nothing happens. My Lords 00:06:00 the bill is introduced by the treasury benches, any bill....

CHIEF JUSTICE CHANDRACHUD: Is it your contention therefore.... Is it your contention Mr. Sibal, therefore that, unless there is a split outside the house, within the political party, that split cannot
00:06:15 find recognition within the Legislative Party within the House?

MR. SIBAL: Absolutely. That's my contention. That is the law also my lords and I will demonstrate that to Your Lordships. That is the law. Now what happens,
00:06:30 I am giving Your Lordships an example my lords, a Bill is introduced by the treasury benches, a controversial Bill let's assume. Bill in which there is no consensus. My Lords what happens? The Parliamentary party, a group of 00:06:45 members of the Legislature are invited by the Parliamentary Party to sit outside the House in a particular room and say, this is the Bill that's being introduced. What is, what should be our position? The party decides the position 00:07:00 and it is articulated in the House. The Legislative Party by itself dehors the party doesn't decide what we are going to do, what we are not going to do. When a whip is going to be issued, 00:07:15 My Lords, it is issued outside the House and translated inside the House. On this, you are going to vote against the bill that has been introduced or that you will vote in favor or that you will abstain.

JUSTICE CHANDRACHUD: But when the Tenth Schedule speaks about, say,
00:07:30 a merger, for instance, now, there are very few exceptions in the Tenth Schedule, and it speaks of a merger. Ultimately the Speaker has to decide whether there is a merger. The Speaker will not go into whether there was a merger outside the House. Because 00:07:45 then the speaker will be taking over the function of the Election Commission of India.

MR. SIBAL: That My Lords, that argument is entirely on a different plane. We are not dealing with it and we will interpret the Paragraph 4 for your Lordships also.

CHIEF JUSTICE CHANDRACHUD: The Speaker's remit cannot lie outside the House.

MR. SIBAL: My Lords,
00:08:00 there's a problem. Supposing, alright, let us analyze that for a minute since your lordships have raised the issue. Supposing there are ten members of the Legislative Party in the House. Right? 00:08:15 And the merger has to take place of the political party, they belong say to the Samajwadi Party. Right my lords? Now, even Paragraph 4 says 00:08:30 there is a merger of a political party, not the merger of the Legislative Party.


MR. SIBAL: So therefore Samajwadi Party...

CHIEF JUSTICE CHANDRACHUD: But no, if we accept your argument that would mean that unless the Election Commission of India decides on a merger outside the House,
00:08:45 the Speaker cannot take a decision within the House whether there is a merger or not. That can't be.

MR. SIBAL: No, no. Election Commission need not decide this issue my lords.


MR. SIBAL: Because a resolution will be passed that we have merged and that will be informed.
00:09:00 The Election Commission, they all have taken a decision. They'll be informed. The majority of the members of the party will decide, they will be informed. Once merger takes place, these eight people, these eight people may say - we don't want to merge. 00:09:15 And Paragraph 4 says they need not merge. But My Lords, I'll come to that later. It is a very complex issue. Not so....

CHIEF JUSTICE CHANDRACHUD: Let's have a broad now framework of the facts because...

MR. SIBAL: I will, I will My Lords.

CHIEF JUSTICE CHANDRACHUD: In fact, that was our basic problem that unless we have
00:09:30 a clear perception on the facts...

MR SIBAL: I am going to do that.

CHIEF JUSTICE CHANDRACHUD: is very difficult for us then to look at the law dehors from the fact.

MR. SIBAL: I entirely agree but, may I just My Lord what are the issues that are going to be. I just want Your Lordships to...

JUSTICE NARASIMHA: We have to necessarily reframe the issues because the kind of the issues which are
00:09:45 there which are...

MR. SIBAL: Yeah, yeah. It's not reflective of what needs to be decided. I agree entirely. My Lord the other issue is, the other issue is and that's never come up before the court. And that issue is, can a Governor,
00:10:00 swear in a member of a Legislative Party against whom a disqualification matter is pending before the House? That is the other issue. Never come up before. 00:10:15 What then are the powers of the Governor in matters in relation to disqualification? 00:10:30 This is not a case of a pre-poll alliance, this is not a case of post-poll alliance, this is not a case of one political party. It is a case of people who allege that they are the party 00:10:45 because they are a majority in the Legislature. Right My Lords? What then are the powers, or what should be the function of the Governor in matters of this nature, and how he should conduct himself? 00:11:00 Because he also knows, because the Disqualification Petition is pending, My Lords. He also knows. And if the Governor does, My Lords, swear him in as 00:11:15 a Chief Minister, My Lords, he actually topples, topples a democratically elected government and aides in doing that because they happen to be a majority in the Legislature. My Lords, that's one of the issues that Your Lordships 00:11:30 may have to consider. Then the other issue to be considered is, can a Court, a Constitutional Court without referring the matter to the Speaker in the facts and circumstances of this case, 00:11:45 decide the matter on it's own, given the fact that there are no disputed facts. 00:12:00 We are not going to My Lords place before Your Lordships, any disputed fact. All are matters of record.


JUSTICE NARASIMHA: Your question is, can a constitutional court decide Tenth Schedule?

MR. SIBAL: Yeah, that is correct.


MR. SIBAL: That's correct.
00:12:15 That's correct. Because under the Tenth Schedule, it has the Speaker to decide. Correct My Lords? But if the proceedings My Lords are imbued with illegality, and given the 00:12:30 conduct of speakers in the past, what then should be the attitude of the court in a given matter? That's the other thing. And then of course, 00:12:45 lastly, My Lords, how do you deal with an issue, and that My Lords because the last question in the reference is the powers of the Election Commission. 00:13:00 And Your Lordships, and that's the last question, which is the last issue Your Lordships will have to decide, that under Paragraph 15 of the Symbols' Order, when there is a split in the political party, 00:13:15 it starts with that proposition, that two factions have arisen pursuant to a split in the political party. Then which factions should 00:13:30 get the symbol?

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