Long Form Summary

Mr. Sibal begins by expressing hope for a fruitful discussion. He states his intention to provide an overview of the issue at hand before delving into the details. The central issue is whether the legislative party in the House operates independently of the political party. Mr. Sibal mentions a specific meeting on June 21st where a group led by Uddhav Thackeray was invited but did not attend, resulting in certain actions being taken. The contention throughout has been that there is a split within the party.

Mr. Sibal then poses the question to the panel: Can members of the legislature claim a split in the party just because they disagree with the leadership? This question requires an examination of the Tenth Schedule, which outlines the role of the party within the legislature. Mr. Sibal emphasizes that members of the legislature are elected on the party's symbol and are inherently connected to the party. They question whether this link can be severed, allowing members to act independently and disregard party decisions.

To explore these issues, the Mr. Sibal suggests analyzing the role of the whip, who acts as a bridge between the Legislative Party and the political party. They assert that nothing happens in the House without the political party's decision-making. Mr. Sibal indicates that the interpretation of the Tenth Schedule is necessary to understand the relationship between the legislative party, the political party, and the role of the whip. He proceeds to provide an example of a scenario involving the introduction of a controversial bill by the treasury benches.

In this scenario, the Parliamentary Party, comprising a group of members of the Legislature, invites its members to a separate room outside the House. There, they discuss the introduced bill and determine the party's position on it. The party's decision is then communicated and articulated within the House. The speaker emphasizes that the Legislative Party, acting independently of the party, does not have the authority to decide the course of action regarding the bill. Instead, decisions such as issuing a whip (a directive on voting) are made outside the House and conveyed inside. The whip informs members whether to vote against, in favor of, or abstain from voting on the introduced bill.

With respect to the query of whether a speaker’s remit lies outside the house, Mr. Sibal acknowledges the problem raised and proposes to analyse the situation. The scenario presented involves ten members of the Legislative Party in the House who belong to the Samajwadi Party. Mr. Sibal points out that even according to Paragraph 4, the provision being referred to, it mentions the merger of a political party rather than the merger of the Legislative Party.

Chief Justice Chandrachud raises a concern that if they accept Mr. Sibal's argument, it would imply that the Speaker cannot decide on a merger within the House without the Election Commission of India making a decision outside the House.

Mr. Sibal elaborates that the Election Commission does not need to decide on the merger issue. He explains that a resolution will be passed within the party, indicating that a merger has taken place, and this information will be shared with the Election Commission. The majority of the party members will decide on the merger, and once it happens, a few individuals may choose not to merge, which is permissible according to Paragraph 4. He acknowledges that the issue is complex and promises to address it later.

The discussion centers on the process of deciding on a merger within the House and the role of the Election Commission in that process. Chief Justice Chandrachud questions the need for the Election Commission's involvement, while Mr. Sibal explains the party's internal decision-making and the subsequent notification to the Election Commission.

Mr. Sibal raises an additional issue. He questions whether a Governor can swear in a member of a Legislative Party who has a pending disqualification matter before the House. This situation involves individuals claiming to be a party due to their majority in the Legislature, rather than a pre- or post-poll alliance of a single political party. Mr. Sibal suggests examining the powers and conduct of the Governor in such cases and highlights the concern that by swearing in a Chief Minister facing disqualification, the Governor might effectively aid in the toppling of a democratically elected government.

Another issue to be considered is whether a Constitutional Court can decide a matter without referring it to the Speaker, given the absence of disputed facts in this case. Mr. Sibal emphasizes that all relevant information is a matter of record and will be presented to the court.

Upon Justice Narasimha raising a question regarding whether a constitutional court can decide matters related to the Tenth Schedule, Mr. Sibal confirms that this is indeed the question at hand. They discuss the role of the Speaker in deciding Tenth Schedule cases but suggest that if the proceedings are tainted with illegality or if past conduct of speakers raises concerns, the court's attitude towards such matters should be considered.

Mr. Sibal then brings up the issue of the powers of the Election Commission, which is the last question mentioned in the reference. He refers to Paragraph 15 of the Symbols' Order, which addresses situations where a split occurs within a political party, leading to factions. The question arises as to which faction should be granted the party symbol.

Justice Narasimha queries whether this issue will arise in the present case, to which Mr. Sibal responds affirmatively. He emphasizes the significance of understanding the role of the Election Commission in such matters, indicating it is a part of the reference being discussed.

Chief Justice Chandrachud raises the question of what happens when two factions emerge as a result of a split under Paragraph 15 of the Symbols' Order. Mr. Sibal responds by emphasizing the role of the Election Commission in deciding such matters and whether it should await the decision of the Constitutional Court or proceed independently. He refers to a previous order by the court that did not provide clarity on how the Election Commission should make its decision.

Chief Justice Chandrachud points out that Mr. Sibal's challenge to the Election Commission's order is an independent issue that the court cannot decide. However, Mr. Sibal maintains that it is part of the reference and intends to argue the matter.

The discussion continues with Mr. Sibal asserting that if the split did not occur on June 21st, constitutionally, the Election Commission cannot proceed. Chief Justice Chandrachud summarizes Mr. Sibal's contention, suggesting that the Election Commission cannot proceed unless the Speaker has made a decision on the matter.

Mr. Sibal confirms this understanding, referencing the court's previous statement of "no stay." He mentions the interaction with the Election Commission, stating that they argued the matter was pending in the Supreme Court, but the Election Commission proceeded regardless. He anticipates that this issue will be further discussed when the court reconvenes.

The discussion goes on to be centered around the issues framed for reference to the Constitution and the need to narrow down the specific issues to focus on during the proceedings. Mr. Sibal refers to the written submissions and the list of dates provided in the petition, highlighting the questions raised in the reference order.

The raised issues include:

A) Whether a notice for removal of a Speaker restricts them from continuing with Disqualification proceedings under the Tenth Schedule.

B) Whether a petition under Article 226 or 32 is permissible to decide a Disqualification Petition by the High Court or the Supreme Court.

C) Whether a court can hold a member deemed disqualified without a decision from the Speaker.

D) The status of proceedings in the House during the pendency of Disqualification Petitions against members.

E) The status of proceedings that occurred during the pendency of a disqualification petition if a member is later deemed disqualified.

F) The impact of the removal of Paragraph 3 in the Tenth Schedule.

G) The scope of the Speaker's power to determine the Whip and the leader of the House Legislative party and its interplay with the provisions of the Tenth Schedule.

H) Whether intra-party decisions are amenable to judicial review.

I) The extent of discretion and power of the Governor to invite a person to form the government and its amenability to judicial review.

J) The scope and powers of the Election Commission of India regarding determining a split within a party.

The need for structured arguments and time scheduling for the proceedings is emphasized upon by the panel of judges. Mr. Sibal suggests consulting with his colleagues to determine agreed-upon issues. The court plans to conclude Mr. Sibal's arguments on the current day, followed by subsequent presentations by Dr. Singhvi and Mr. Kamat.

The discussion concludes with considerations for time allocation, accommodating questions from the judges, and the potential inclusion of the Nabam reference in the proceedings.

Mr. Sibal then goes on to provide for a detailed account of events related to political developments in Maharashtra, particularly involving the Shiv Sena party and the legislative assembly. Here is a comprehensive summary of the mentioned details:

April-May 2020: The Governor and the MVA government (comprising Shiv Sena, NCP, and Congress) were at odds. The Governor delayed approving the nomination of a member to the Legislative Assembly and blocked the Speaker's election, causing political tension.

June 20, 2020: In the MLC election, Shiv Sena lost a seat to BJP due to cross-voting within the MVA, allegedly orchestrated by the BJP.

June 21, 2020: Shiv Sena called a legislative party meeting to address the apprehensions arising from the MLC election. Eknath Shinde and other MLAs did not attend the meeting, and Shiv Sena decided to remove Shinde as the leader of the legislative party and appointed Ajay Chaudhary instead. This decision raised constitutional concerns.

June 22, 2020: A second legislative party meeting was called to give absent MLAs an opportunity to show loyalty. Several dissident MLAs did not attend the meeting and rejected it as illegal. The Chief Whip responded to their absence, considering it antiparty activity.

June 23, 2020: Disqualification petitions were filed against Eknath Shinde and other delinquent MLAs.

June 24, 2020: News reports alleged collusion between rebel MLAs led by Eknath Shinde and the BJP. A notice for the removal of the Deputy Speaker was received at the Legislature Secretariat.

June 25, 2020: Deepak Kesarkar, one of the dissident MLAs, announced the formation of a new group named "Shiv Sena Balasaheb" in a live interview. Disqualification petitions were filed against two independent MLAs and one BJP MLA.

June 27, 2020: The Deputy Speaker's notice for a floor test on June 30th was challenged in court through a writ petition. The court ordered an interim stay, extending the time for MLAs to file their written submissions.

June 28, 2020: Devendra Fadnavis, the Leader of Opposition, met the Governor and requested a floor test after the stay. The Governor, without verifying the majority, directed the Chief Minister to face a floor test on June 30th.

June 29, 2020: Sunil Prabhu filed a petition seeking a stay on the floor test due to pending disqualification petitions. The court refused to stay the trust vote, subjecting it to the final outcome of the petition.

June 30, 2020: Eknath Shinde and Devendra Fadnavis met the Governor and staked claim to form the government. The Governor, without considering the pending disqualification petition against Shinde, swore him in as Chief Minister. Shinde was directed to prove his majority in the Assembly.

July 1, 2020: Shiv Sena Secretary informed the Election Commission of the removal of party members and changes in the organizational setup.

July 2, 2020: Sunil Prabhu filed an application seeking an interim order to suspend the delinquent MLAs until the final adjudication of the disqualification proceedings. The application was listed for hearing on July 11th.

July 3, 2020: Election for the Speaker's office took place, and Rahul Narvekar of BJP was unconstitutionally elected as the Speaker. 39 delinquent Shiv Sena MLAs voted against the party whip during the election.

During the proceedings, Chief Justice Chandrachud and Mr. Sibal discuss the number of votes cast against the party whip during the Speaker's election on July 3rd. Mr. Sibal asserts that the 39 MLAs who voted against the whip should be considered disqualified, while Chief Justice Chandrachud questions the impact on the majority. They acknowledge that even if the 39 MLAs are excluded, the remaining members would still have a majority. The Chief Justice notes that the Speaker's election occurred shortly before the trust vote on June 30th, suggesting a rapid change in political dynamics. Mr. Sibal states that they have challenged all relevant aspects, including the elections, the Speaker's appointment, and the trust vote. The discussion then veers towards whether the courts should have granted more time in an interim order.

The discussion between Chief Justice Chandrachud, Mr. Sibal, and Mr. Kaul focuses on the disqualification of 39 MLAs who voted against the party whip and its impact on the government's stability. Mr. Sibal raises concerns that the interim order allowed these MLAs to topple the elected government before the Disqualification Petitions were decided. He argues that if these actions were deemed self-disqualification, it would set a precedent for toppling any elected government.

Chief Justice Chandrachud highlights that even after excluding the 39 disqualified MLAs, the Speaker's election indicates a close proximity to the Trust Vote scheduled for the 30th. Mr. Kaul explains the arithmetic, stating that even without the disqualified MLAs, the effective strength of the assembly is 249, with Mr. Narweker receiving 125 votes, which is above the required majority of 50%. However, Mr. Kaul also notes that on that date, only 16 disqualifications occurred.

The discussion further explores the effective strength of the House and the halfway mark. Excluding the disqualified and independent MLAs, the strength comes down to 246, and Mr. Narvekar receives 122 votes. Mr. Sibal argues that disqualification is still applicable regardless of the outcome of the election.

The Chief Justice and Justice Kohli confirm the halfway mark as 123, with Mr. Narvekar receiving 125 votes. Mr. Sibal mentions three additional disqualifications, which are included in the calculation. However, the Tenth Schedule, which governs disqualification, is deemed not concerned with these numerical details.

Mr. Sibal concludes that the issue at hand is not about numbers but rather the court's concern. The discussion touches upon whether the court should consider these aspects.

The discussion goes on to revolve around the disqualification of three independent MLAs and their impact on the arithmetic calculations. Chief Justice Chandrachud mentions that excluding those three, the count for Mr. Narvekar comes down to 122, which is below the halfway mark. Mr. Sibal agrees with the calculation but argues that the Tenth Schedule, which governs disqualification, is not concerned with these details. Mr. Kaul questions the disqualification of the independent MLAs, stating that they cannot be disqualified without proper procedure. Mr. Sibal emphasizes the need to read the Tenth Schedule and suggests that Mr. Kaul's submission contradicts it.

Mr. Jethmalani raises the point that only 16 MLAs were disqualified, not 39. However, Mr. Sibal asserts that on the third day, all 39 MLAs were under disqualification because they voted against the whip.

The Chief Justice acknowledges Mr. Sibal's point that the issue is related to the Tenth Schedule. Mr. Sibal reiterates that the arithmetic exercise is just a matter of numbers and that majorities are determined in this manner. Mr. Jethmalani concludes by mentioning that after excluding the 39 MLAs, the count for Mr. Narvekar stands at 125.

Mr. Sibal clarifies that they are discussing 42 MLAs, not 39. Chief Justice Chandrachud asks for the number of votes obtained by Narvekar, and it is clarified that he received a total of 164 votes. The discussion then centers around excluding the 39 Shiv Sena MLAs and three independent MLAs from the count. By deducting 42 from the total of 164, the count comes down to 122.

Mr. Jethmalani mentions that Narvekar only received 107 votes for the Speaker candidate, and Mr. Kaul states that the actual strength of the house was 287. Mr. Sibal argues that if the MLAs had followed the party whip, they would have had a majority and Narvekar would not have been elected. The Chief Justice acknowledges the disqualification of the 39 MLAs and raises the issue of other party members who voted for Narvekar. Mr. Sibal clarifies that some members were absent and did not vote.

After excluding the 39 Shiv Sena MLAs and three independents, Narvekar's count is still 122. Mr. Sibal suggests that some members must have been absent and mentions the presence of 13 independent MLAs from various parties. The Chief Justice acknowledges Mr. Sibal's point and summarizes that the Speaker should have been allowed to decide on disqualification, and a trust vote should not have been held while the Disqualification Petition was pending. Additionally, Mr. Sibal criticizes the Governor for swearing in Narvekar, who was facing disqualification.

Mr. Sibal argues that the wider issue at hand is whether a trust vote should have been postponed due to a pending Disqualification Petition. Mr. Sibal emphasizes that the trust vote only took place after the events of June 27, implying that it wouldn't have occurred otherwise. Justice Narasimha states that the primary issue to be decided is the status of the party outside the Legislative Assembly, whether there is a split or dissent, and once that is determined, the Tenth Schedule comes into play.

Mr. Sibal clarifies that the Tenth Schedule triggers immediately, but its interpretation should focus on the events surrounding the political party, not solely on the Legislative Party. He argues that members of the Legislative Party cannot subvert the Tenth Schedule by claiming a split in the party without there being an actual split. Justice Narasimha agrees with this argument, and Mr. Sibal acknowledges their agreement, stating that he cannot contradict it.

Mr. Sibal asserts that the Disqualification Petitions relate back to June 21st, emphasizing that the defense under the Tenth Schedule should have been presented on that day. Justice Shah seeks clarification, questioning whether the Speaker's role under the Tenth Schedule is limited to giving declarations. Mr. Sibal confirms this and states that whatever has transpired after June 21st is subject to the Disqualification Petitions. He refers to a Constitution Bench ruling that supports this notion.

Justice Shah acknowledges this as one of the issues at hand, wondering about the consequences in the intervening period. Mr. Sibal agrees, stating that matters such as Nabam Rebia need to be decided by the court in due course. Justice Narasimha notes that the applications and complaints are pending, and the House is still functioning without lapsing due to the passage of time. He suggests that the Speaker, in his capacity, should decide on the Tenth Schedule complaints, and it should relate back to June 21st, 2022.

Mr Sibal emphasizes the importance of the Speaker's role in deciding disqualifications under the Tenth Schedule and questions what exactly the Speaker is supposed to decide. Mr. Sibal points out that the facts are undisputed and there is no defense available except in cases of a merger. He raises concerns about issuing a mandamus to the Speaker within a specific time frame and the potential constitutional issues that may arise. Mr. Sibal suggests that the court's decision in the Rana case supports his argument and highlights the need for reconsideration of the matter. He also criticizes the legitimacy of the current Speaker, stating that their authority is based on an illegality. Despite acknowledging the difficulty in reinstating the earlier Speaker, Mr. Sibal references the Nabam Rebia case where the court did reinstate the government.

Mr. Sibal responds to the court's concern about the court assuming the powers of the Speaker by stating that the facts in this case are undisputed and there is no political thicket to navigate. The court questions the logical consistency of retracing steps to the position before the 27th of June. Mr. Sibal refers to the Nabam Rebia case and argues that going back to the previous position is necessary to prevent the recurrence of such situations in the future. He emphasizes that even a small group of individuals can dislodge a government by calling for a trust vote and appointing a new speaker. Mr. Sibal urges the court to consider the other side of the issue and the need to put an end to such practices. He acknowledges that the court's decision is ultimately at its discretion.

Mr. Sibal suggests that the court can direct the Speaker to decide the disqualification of the 39 MLAs within a specific timeframe, and if the decision is against them, they can appeal to the court. He highlights that the Speaker has already issued a notice against their side but not in their matter. The Chief Justice seeks clarity on the practical consequences if the Speaker concludes that the MLAs are disqualified. Mr. Sibal explains that the Chief Minister would have to step down as per 164-1B, and the disqualified MLAs would also lose their positions. The Chief Justice acknowledges that if the Speaker's decision is challenged, it would be before the appropriate court, to which Mr. Sibal clarifies that it would be before the court itself. Ultimately, the outcome would depend on whether the Speaker determines disqualification or not.

Chief Justice Chandrachud seeks to understand the next step in the sequence of events based on Mr. Sibal's argument. Mr. Sibal explains that if the disqualified MLAs are removed, the Chief Minister who has the majority in the trust vote will assume power. He mentions the problem of judicial orders creating complex situations and emphasizes that they are put in a position where they are asked what can be done now. The Chief Justice clarifies that they are not questioning the correctness of Mr. Sibal's argument but are considering the relief that a Constitutional Court can grant within the framework of the Constitution. Mr. Sibal acknowledges this and suggests a seven-day timeframe for the Speaker to decide, but he raises the concern that issuing a mandamus to the Speaker may lead to a constitutional crisis if the Speaker refuses to comply. Justice Narasimha points out that the Nekchandra case is the only exception where there was a direction for early disposal of a petition, and even that was referred to a Constitution Bench. Mr. Sibal highlights that they have challenged the Speaker's decisions before any action is taken, emphasizing the importance of considering those decisions. He urges the court to avoid shortcuts that may not lead to a meaningful resolution.

Mr. Sibal provides an update on the proceedings, mentioning that fresh disqualification proceedings were initiated against the delinquent MLAs who violated the party whip. There were 16 earlier cases and an additional 22 cases for which notices have not yet been issued. He explains that on July 3rd, a trust vote took place, and the election of the Speaker was conducted in violation of provisions. He alleges that certain MLAs submitted letters for the removal of Rahul Narvekar from the office of Speaker, claiming that Narvekar illegally recognized Bharat Gogawale as the Chief Whip and Eknath Shinde as the leader of the party. Mr. Sibal questions the basis on which the Speaker made these decisions, arguing that such appointments should come from the political party itself. He highlights the example of Mr. Kharge becoming the leader of the Congress Party, where the letter of appointment came from Mrs. Gandhi.

Further, Mr. Sibal goes on to present a timeline of events, On July 3rd, the Speaker's communication recognizing Bharat Gogawale as the Chief Whip was challenged in court. On July 4th, a Confidence Motion was called for in the Maharashtra Legislative Assembly, and it was carried out in favor of Eknath Shinde. However, several MLAs of Shiv Sena voted against the party whip. Bharat Gogawale then filed disqualification petitions against 14 MLAs for breaching the whip issued by him, but it is argued that he was not authorized by the Shiv Sena political party to issue whips. On July 5th, fresh disqualification petitions were filed by Sunil Prabhu against the 39 delinquent MLAs who defied the whip during the Confidence Motion. On July 7th, Uddhav Thackeray, as the President of Shiv Sena, wrote a letter to the Speaker objecting to the illegal recognition of Bharat Gogawale and reaffirming the party's decision to recognize Sunil Prabhu as the Whip. The issue at hand is that the legislative party is assuming the role of the political party, leading to a constitutional concern that the court needs to address.

Regarding the representation of the political party and the determination of who constitutes the political party, Mr. Sibal explains that the Chief Whip and Whip, along with the Deputy Whip, are appointed by the political party and serve as intermediaries between the political party and the legislative party. Upon Chief Justice Chandrachud’s inquiry about the authority responsible for deciding the political party, Mr. Sibal emphasizes the necessity of a split within the party to determine another party under the 10th Schedule.

Mr. Sibal explains that until now, it has not been claimed by anyone that there is a split in the political party. The conversation further delves into the hypothetical scenario of a faction within a party taking over the party without the involvement of the 10th Schedule. Mr. Sibal emphasizes that this can happen only if there is a division within the legislative party, leading to the formation of a separate party. He refers to the Sadiq Ali case as an example where a split occurred in both the legislative party and the political party. Mr. Sibal clarifies that in the present case, no such split has occurred within the political party, and the claim that the legislative party represents the entire party is not valid. He warns that allowing the legislative party to proclaim itself as the political party and remove appointed office-bearers goes against constitutional principles. Mr. Sibal questions the impartiality and competence of the newly elected Speaker, raising concerns about the discharge of their responsibilities. The discussion highlights the importance of recognizing the distinction between the legislative party and the political party and the consequences of blurring those lines within the context of the 10th Schedule and the functioning of the Constitutional office of the Speaker.

Chief Justice Chandrachud raises the point that the Speaker's authority to decide disqualification petitions does not depend on who the Speaker is or the decisions they make. Mr. Sibal acknowledges this but emphasizes that if a constitutional authority conducts itself with bias, it raises questions about their ability to fulfill their functions. The discussion further explores the issue of bias and the need for the government to defend allegations of bias in cases involving the Governor. Mr. Sibal argues that the Speaker's actions, such as appointing the Whip and the leader of the House without reference to the political party, undermine confidence in the Speaker's impartiality. Chief Justice Chandrachud acknowledges the concerns and presents two options: debunking the authority of the Speaker or valuing the office of the institution despite the actions of individuals. Mr. Sibal asserts that the denigration of constitutional offices is happening due to the actions of those holding those offices. The conversation highlights the delicate balance between respecting the authority of the Speaker and acknowledging instances where their actions may raise concerns about impartiality. Justice Narasimha emphasizes that the Speaker is the tribunal and presiding officer as per the 10th Schedule, and the Court will abide by the Constitution Bench judgment. The discussion underscores the complexity of the issue and the need to reconcile the authority of the Speaker with ensuring fairness and maintaining the integrity of constitutional offices.

Mr. Sibal acknowledges that the situation is complex and does not intend to debunk the entire procedure or the 10th Schedule. Justice Kohli questions whether the court should discredit the entire procedure based on the actions of a few Speakers. Mr. Sibal agrees that it is a constitutional conundrum that the court will eventually have to address. Justice Narasimha raises the point that the issue of Speaker conduct should be resolved within the Parliament through constitutional amendments or discussions among political parties. Mr. Sibal suggests that the political parties in power have no incentive to change the current system. Justice Narasimha expresses the view that unless there are amendments to the Constitution or direct challenges, the issue will not be resolved.

Mr. Sibal expresses his concerns about the impartiality and credibility of the Speaker's role in deciding matters with political implications. He acknowledges the importance of the Speaker's position but highlights recent events that have raised questions about their impartiality. Mr. Sibal refers to recommendations made by the National Commission and the views of experts suggesting that the power to decide disqualification on the grounds of defection should be vested in the Election Commission rather than the Speaker. He clarifies that it is not for the court to decide who should have this power, as it is a matter for Parliament to determine. Mr. Sibal emphasizes that his intention is not to criticize individual Speakers but to address the concerns regarding the institutional framework within which the Speaker functions as a tribunal. He points out that the Speaker lacks the authority in law to decide on matters such as the Whip and the leader of the house.

Mr. Sibal raises concerns about the Speaker's actions, including issuing notice in certain disqualification petitions while neglecting others. He mentions the challenge to the notice issued by the Speaker, the filing of applications and replies before the Election Commission, and the subsequent freezing of the Shiv Sena's symbol. The Election Commission directed Uddhav Thackeray and Eknath Shinde to submit their preferences for interim party names and symbols. The Commission rejected certain proposals and allotted interim names and symbols. Uddhav Thackeray filed a writ petition in the High Court seeking to quash the Election Commission's order. The Election Commission requested Thackeray and Shinde to submit additional details, and the High Court dismissed Thackeray's petition. The Election Commission's decision was made on February 17th. Mr. Sibal also highlights the composition of the legislative bodies and the number of members aligned with each party.

Mr. Sibal discusses the party representation in different legislative bodies. He states that in the Legislative Council in Maharashtra, all 12 members are with their party, and in the Legislative Assembly, they claim to have 15 out of 40 members. In the Rajya Sabha, all 3 members are with their party, and in the Lok Sabha, they have 6 out of 18 members according to their understanding. Mr. Sibal also mentions the organizational structure of the party, including the Pratinidhi Sabha and Karya Karini, highlighting the reliance on the 2018 Constitution during the arguments. He raises concerns about the Election Commission's failure to inform them about the absence of the 2018 Constitution in their records. Mr. Sibal explains the provisions of the Tenth Schedule related to membership of political parties, directions issued by the party, and the role of the Whip. He emphasizes that political parties issue directions, not legislative parties, and permission must be obtained from the political party to vote against the Whip. Mr. Sibal points out the criteria for belonging to a political party as per the explanations provided in the Schedule. He also mentions the disqualification of elected members who join a different political party after the election. Finally, Mr. Sibal refers to the deletion of paragraph 3 and its relevance.

Mr. Sibal discusses the provisions of paragraph 3 of the Tenth Schedule, which allows for an exception to disqualification in case of a split within the original political party. He explains that for this exception to apply, a member of the House must claim that he and a group of members from the Legislative Party constitute a faction resulting from a split in the original political party, with the faction consisting of at least one-third of the members of the Legislative Party. Mr. Sibal emphasizes that the split must be demonstrated by the member, who then calls for a meeting of the original political party as a faction, passes a resolution, and breaks away from the party. Even if the member fails to take control of the party, he will not be disqualified under paragraph 2 if the faction meets the one-third requirement. The faction formed by the split will be deemed as the member's new political party for the purposes of paragraph 1 of the Schedule. Mr. Sibal clarifies that none of these conditions have been met in the present case. Chief Justice Chandrachud notes that the quantum of the split is not defined in terms of numbers, emphasizing that as long as there is a split and one-third of the Legislative Party represents the faction, the exception applies. Mr. Sibal agrees with this interpretation, stating that the size of the split can be a minority or majority; what matters is that a split has occurred.

Mr. Sibal discusses the amendments made to the Tenth Schedule of the Constitution. He explains that the concept of a split within the original political party is no longer applicable, and the statement of objects and reasons for the deletion of paragraph 3 of the Schedule emphasizes the need to prevent bulk defections that destabilize the government. Mr. Sibal argues that the provisions of the Tenth Schedule should be interpreted to disqualify both bulk defections and minority defections, without any defense based on a split within the Legislative Party. He refers to the recommendations of various committees, such as the Dinesh Goswami Committee and the Law Commission of India, which proposed the omission of paragraph 3. The objective is to penalize defectors by debarring them from holding public office or political posts for the remaining term of the legislature or until the next election. Chief Justice Chandrachud raises the issue of determining who represents the political party, and Mr. Sibal clarifies that this is resolved outside the house, not within the legislative party. He cites a judgment of the court in Brahmananda Reddy as guidance on how this resolution occurs.

Mr. Sibal discusses the importance of following the internal constitution and bylaws of a political party when addressing issues related to splits and mergers. He emphasizes the need for proper procedures, such as calling a meeting and resolving the issue within the party. He argues that recognizing a split within the legislative party without any claim or evidence of a split in the original political party would allow for easy toppling of governments. Mr. Sibal suggests that to remedy this issue, there should be a five-year period during which defectors are not eligible for any public office or political posts. He mentions that the 91st Amendment aimed to address some of these problems but still did not allow for bulk defections. He further explains the provisions of Paragraph 4 of the Tenth Schedule, which allow for mergers of political parties without disqualification. He clarifies that a merger must be agreed upon by at least two-thirds of the members of the Legislative Party concerned to be deemed valid. Mr. Sibal argues that the 40 individuals in question do not have a defense under the Tenth Schedule as they neither claim a merger nor meet the requirements for a valid merger. He highlights that the Tenth Schedule aims to prevent bulk defections and stabilize elected governments. Chief Justice Chandrachud acknowledges the importance of these considerations and the need to make a decision on the matter.