The Supreme Court is hearing the plea by the Uddhav Thakceray camp of Shiv Sena challenging Maharashtra Governor Bhagat Singh Koshyari's decision to hold floor test in the Maharashtra Legislative Assembly tomorrow.The case was mentioned today morning by Senior Advocate Dr Abhishek Manu Singhvi before a bench of Justices Surya Kant and JB Pardiwala seeking urgent listing citing the fact that the floor test is scheduled for 11 am tomorrow.The bench the agreed to hear the case at 5 pm today.Maharashtra has been embroiled in political crisis after cabinet minister Eknath Shinde and a rebel group of MLAs left the State first for Surat in Gujarat and then for Guwahati where they have been encamped for more than a week now.Shinde group has expressed its displeasure with the alliance by Shiv Sena with the Congress and Nationalist Congress Party.It has claimed that it stands for the cause propounded by founder Balasaheb Thackeray and has named itself ‘Shiv Sena (Balasaheb)'.The Deputy Speaker of the Assembly had then served notice for disqualification on 12 of the rebel MLAs.However, they had then approached the Supreme Court challenging the disqualification notices as well as the appointment of Ajay Choudhari as Shiv Sena Legislature Party leader.The top court had on June 27, granted interim relief to Shinde and the rebel MLAs by extending the time to file response to the disqualification notice sent by the Deputy Speaker, till July 12. The deadline was set to expire at 5.30 pm on June 27.Live updates from the hearing below..Pleas will be heard by vacation bench of Justices Surya Kant and JB Pardiwala..The Bench will also hear applications by Maharashtra Cabinet Minister Nawab Malik and former Minister Anil Deshmukh seeking permission of the Court to cast their vote in the floor test..Bench has presided..Senior Advocate Abhishek Manu Singhvi appearing for Prabhu begins his submissions. Sr Adv Singhvi: I will be very brief..Sr Adv Singhvi: The preliminary point first - the letter says that June 28 evening, the leader of opposition met with the Governor at 10 pm. In the morning when we mentioned the matter we received a letter of intimation..Sr Adv Singhvi: Two MLAs of NCP are down with COVID, two from Congress are abroad. Just mark this milords. My second point is that the floor test determines which government or set of people represent will of people in constitutional sense..Sr Adv Singhvi: It really begs the question of true majority. Because it includes those to be included and which to be excluded. .Sr Adv Singhvi: How do you determine the electoral college without going into the contents? How will he know which are qualified or disqualified? The decision of the Speaker will change the pool who will be voting. Before plunging into the pool, the size has to be noted..Sr Adv Singhvi: If on July 11, milords decides the petition, say the speaker’s bar is lifted, and certain MLAs are disqualified, then the test would have concluded tomorrow..Justice Kant: How will those proceedings become infructuous? Sr Adv Singhvi: Suppose the petition is dismissed, and the speaker disqualifies, how do we reverse the result of the floor test tomorrow? It is an irreversible process. Justice Kant: Is there a time limit for floor test?.Justice Kant: If there is a floor test tomorrow, and then after 15 days, there is a change in pool, then is there a bar on holding a fresh floor test? Sr Adv Singhvi: There is a bar of 6 months. The vote of confidence or no confidence has to be after 6 months or so..Justice Kant: As far as disqualification issue is concerned, that matter is sub judice before us. We will determine it. How does the floor test depend on qualification or disqualification? Are these powers interchangeable or inter related?.Sr Adv Singhvi: A disqualification once found by the Speaker will stand disqualified from the date it is held by the Speaker. They cannot be treated as member of that assembly. Now, today, Your Lordships would be allowing the MLAs to vote in a floor test, when their membership ceases..Justice Kant: This is a case, where the Speaker has taken a conscious decision, and the challenge to the same is pending before the courts. But then in case where Speaker has been approached with disqualification and no decision has been taken, will it be disqualification?.Sr Adv Singhvi: The fact that the court has stopped that (disqualification) process, the persons who are facing that are taking advantage of the same. They have disqualification proceedings stayed against them and then they are protesting. That cannot happen..Sr Adv Singhvi: When speaker decides that a person is disqualified, they cannot be treated as members from inception, from the date when the disqualification petition is filed. This has been held time to time by Supreme Court..Justice Kant: The time period was extended after it was pointed out that the notice sent to the Deputy Speaker of no-confidence and was rejected and hence that required affidavits. So, till then time was extended in disqualification proceedings..Sr Adv Singhvi: I am most grateful that Milords heard both sides at length on Monday, and passed an order which milords deemed fit. However, what needs to be considered is that if disqualified, the MLAs will stand disqualified from June 21..Sr Adv Singhvi: If these MLAs are allowed to vote tomorrow, then Milordships would be permitting voting by MLAs who may be disqualified later. That goes to the root to the democratic principles..Sr Adv Singhvi: That apart, another contention is on the undue haste shown in the matter. The Governor is bound to act on the aid and advise of the council of ministers. Here he may act on the advise of ministers or not, but definitely cannot act on the advice of opposition..Sr Adv Singhvi: This seems to have happened in the present case. The fourth point is, kindly see the letter. Sr Adv Singhvi reading out letter. .Sr Adv Singhvi: A person to have given up voluntarily from the party, need not write and submit. His conduct can very well show. .Sr Adv Singhvi: Your conduct in approaching the Governor is an act in giving up membership, is what I am submitting..Sr Adv Singhvi: Tenth Schedule is very different. My learned friends got a stay from Your Lordships, they think they can do whatever they want. Justice Kant: In the earlier letter, are you disputing the figure also? Sr Adv Singhvi: Absolutely. These people have not been verified..Sr Adv Singhvi: The Governor should have called this side, that side. The governor keeps the letter for a week, and acts on it only after the leader of opposition approaches him. The Governor has taken no steps to verify..Justice Kant: Why should we wait for the subjective satisfaction of the Governor? Why should we take his word for whether these MLAs are of this side or that side? Sr Adv Singhvi: Yes..Justice Kant: We are saying this from the Shivraj Chauhan judgment..Justice Kant: Suppose a government knows that they have lost the majority of the house, and the speaker is asked to issue disqualification to those withdrawing support. Then at that point should the Governor wait for calling a floor test or can he independently decide under Article 174..Sr Adv Singhvi: May I completely answer with a hypothetical question? Suppose in a case, people have simply defected. They walked to the other side, and the governor asked for a floor test. Will this not blow away the tenth schedule to smithereens?.Sr Adv Singhvi: These people can just also move a no-confidence against the Speaker which may disable the speaker from deciding their disqualification. Why should the governor have a floor test tomorrow after having met with the leader of opposition, and without calling the CM?.Sr Adv Singhvi: We might as well throw the tenth schedule away. Your Lordship is considering, can governor not wait till July 11? If no heavens will fall till Milords decide the issue on July 11, what heavens will fall if the floor test does not happen tomorrow?.Justice Kant: Is it correct that in the present case, they want the opposition to form government? Sr Adv Singhvi: Yes, it says so in the letter of the governor..Sr Adv Singhvi: I am today only submitting that Milords are not barred..Sr Adv 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 Singhvi: Most importantly, these are cases, where the court had not stopped the speaker as well..Sr Adv Singhvi: In the Uttarakhand case, the Supreme Court allowed for floor test, and the disqualification proceedings had been decided..Sr Adv Singhvi: In Shivraj Chauhan case, the court had held that there was no fetter on the floor test, that any pending disqualification proceedings cannot deter the speaker from deciding..Sr Adv Singhvi: But the speaker there was not stopped by any court from deciding the question, he had been dilly-dallying..Sr Adv Singhvi: Nothing prevents a speaker from taking decision either disqualification, or any other. If Milord permits speaker to proceed and go ahead with the floor test, then how will the process work? The speaker’s hands today are tied..Sr Adv Singhvi: The situation tomorrow will be if Your Lordships have not intervened, when the floor test happens, there is a chief whip recognized by the Speaker. Mr. Kaul has argued that Prabhu is not the whip but their candidate is..Sr Adv Singhvi: Tomorrow either Prabhu’s whip will be obeyed or the whip from Shinde faction will be obeyed. Who has to be obeyed? How will the deputy speaker decide?.Sr Adv Singhvi: Your Lordships have to decide and balance. There is a temporary cloud on the disqualification proceedings, there should also be a temporary cloud on the floor test. So, either that hand has to be lifted or this floor test has to be stayed. .Senior Advocate Neeraj Kaul appears for Eknath Shinde: When we came to Your Lordships, our principle reasons was that the Supreme Court had said in Nabam Rabia that till speaker’s own removal is decided, it is impressible and prohibited for him to proceed..Sr Adv Kaul: The first he has to decide on his position, and then proceed with disqualification. That is what the Supreme Court judgment says..Sr Adv Kaul: You (Speaker) are seized of a matter, you know there are proceedings against you, you cannot proceed at all. It is a jurisdictional issue. .Judges are discussing amongst themselves..Sr Adv Kaul: There are three points: The floor should never be delayed the only way to test horse trading is floor test, merely because pendency of proceedings, pertaining to MLAs who have resigned or have faced a wrath from the speaker are not grounds to delay the speaker..Justice Kant: The arguments of Singhvi is that those proceedings are not voluntarily pending before the Speaker, those are stayed because of an order of this court..Sr Adv Kaul: The Supreme Court says, whether it is pending or not, it will never ever impact the floor test. That is the starting point..Sr Adv Kaul: All the MLAs who constitute the house must undergo the floor test. The proceedings before the Speaker will go on, but the floor test must go on. .Sr Adv Kaul: We came to Milords with our petition for two reasons - for the undue haste. The primary reason, was that an action done was in the teeth of the order of the Supreme Court. It is not like the Supreme Court was interfering, something that Milords did was in consonance with the order..Sr Adv Kaul: The Supreme Court categorically says, whether he is competent or not, whether a person ought to be disqualified or not, is inconsequential to the floor test. Assuming the Speaker doe not have power, the Supreme Court says, floor test cannot wait..Sr Adv Kaul: When the CM has lost confidence in the house, the moment the CM shows reluctance, the Supreme Court has noted, it shows that he knows he has lost the majority. This is all the more reason to have a floor test..Sr Adv Kaul: Unless or until the decision of the governor, is not showing unreasonable, then that cannot be interfered with. He has a discretion Justice Kant: Hypothetically, as you say, the power of Governor to issue notice for floor test does not need advice of council of ministers..Justice Kant: Assuming a floor test takes place, who are competent to participate? Sr Adv Kaul: Tomorrow if these people are disqualified, then the pool changes.. the Supreme Court has clarified that there is no connection with the floor test..Sr Adv Kaul: If you are so confident, then go ahead with the floor test. What is being sought now is a hopeless minority within a party who do not want a floor test. I have seen people run and come to court seeking floor test. There has never been a party which is asking no test..Sr Adv Kaul begins distinguishing the judgments cited by Singhvi..Sr Adv Kaul: How can the petitioners be permitted to argue that mere pendency of that matter of disqualification can be allowed to intervene in the floor test? My learned friend is trying to relate a matter which is completely different. .Sr Adv Kaul: You cannot bring a new argument everyday - who are they, where are they, with which party are they? He cannot bring in the issue of whip. That is for the assembly to decide. What the Governor is doing is only determining the majority..Sr Adv Kaul: We can again go through the paragraphs of Rabia again. The Supreme Court says you cannot proceed, where the question of him having passed any order. You are not above the constitution. The Deputy speaker has respect in the house, but they cannot act contrary to the constitution..Sr Adv Kaul: If the Speaker would have passed any order, we would have tried our best to convince the court to stay that order. Rabia is clear, there is no doubt at all..Sr Adv Kaul: Today whether the Speaker is to be removed or not, cannot be related to the test. The more you delay a floor test, the more damage you to the constitution. If you want to prevent horse trading, then the best way to do it is floor test..Sr Adv Kaul: If you are sure about the majority, then just go ahead with the floor test. There is no need for people to go to Surat, Guwahati, let there be a floor test. And they are piggy backing on our petition by relating it to the floor test and asking for reliefs..Sr Adv Kaul: This is a peculiar situation, that merely because we are relying on a constitutional judgment, they are using it to connect to their petition to seek reliefs..Justice Kant: Is it your argument that there can be a very dangerous move against democratic morality, that the government is using office of disqualification because it knows it lost majority?.Sr Adv Kaul: Rabia says this. How can one rule out political considerations? But Rabia has laid down, first speaker proceedings and then disqualification proceedings.My learned friend is asking why tomorrow, because the governor has found material and he deems it fit that there be a majority test..Sr Adv Kaul: The unfolding situation required floor test and Governor used discretion. One cannot just frown upon media reports and say they are just media reports, they are source of information..Sr Adv Kaul: What kind of an argument is this that a person recovered from Covid two days ago? Should the governor just sit back, now that he has recovered from a disease, and wait for the state to burn?.Sr Adv Kaul: My learned friend is saying he could have decided, this could have happened, he could not decide! Not in the teeth of the Supreme Court judgement!.Sr Adv Kaul: If you continue to have the vote, you continue, if you do not have majority, you cannot continue. .Sr Adv Kaul: Your disqualification petition says they have invoked wrath of tenth schedule. But these are completely distinct from the floor test. Is this one of those cases, where judgement of speaker was so devoid of material or non-application of mind. .Sr Adv Kaul: There is no such exceptional circumstance that merits intervention by the court..Sr Adv Kaul: No one is saying the decision of the governor is immune from judicial review. But is the present case of that kind? .Sr Adv Kaul: The court has always held in favour of floor test and has frowned upon delay on the floor test. .Sr Adv Kaul: One point - suppose later the speaker disqualifies, that cannot be an argument that since that is pending, this cannot be decided. The judgments are clear on this, the principles of democracy is at stake here..Sr Adv Kaul: If the legislature acts grossly, then the Court can interfere and it had interfered previously..Sr Adv Kaul: I will sum up, in the series of judgments what are the basic principles - the CM’s refusal to oppose floor test shows he does not enjoy majority..Sr Adv Kaul: The floor test can be stayed only if there is violence involved. The judgment thereafter says that governor by whatever means will apply his mind when the floor test ought to be held and that will be the final word..Justice Kant: How many MLAs are dissidents? Sr Adv Kaul: I am told that there are 39 MLAs, hence the fear for a floor test. Justice Kant: And how many are facing disqualification? Sr Adv Kaul: 16 MLAs..Sr Adv Kaul: There are 288 MLAs. There are some independent MLAs, and I am being told that I have support of 9 MLAs. We are not leaving the Shiv Sena, we are the Shiv Sena, we represent the majority. The minority is trying to stop this floor test..Senior Advocate Maninder Singh: Whenever, my Lordships have sat this late, it is never to stop floor test, it is to conduct a floor test. This is the first time a request is made to stop a floor test. .Sr Adv Singh: Their argument is that the Governor acted without aid and advice of the ministers, there are judgments to show that the aid of ministers is not required..Sr Adv Singh: What Your Lordship is to ensure that there is compliance of natural justice. When the MLAs came, Your Lordship said give them time to respond. That is principle of natural justice..Sr Adv Singh: Asking the test to be stayed by a minority is not principle of natural justice. Take the floor test and prove majority..Sr Adv Singh: There was a demand for floor test by the CM. Then there was a letter sent there is no majority. Then there came disqualification petition, then there was no confidence motion. But the fact that there is no majority, the floor test is required to be held..Sr Adv Singh: Can 16 people go against the 39? that would be undemocratic. Justice Kant: Assuming the floor test is held, the Court can hold that the process initiating floor test is unconstitutional.. it is not irreversible..Solicitor General Tushar Mehta: I must say, that first of all, that the argument that your lordships have interdicted his jurisdiction of the speaker, I say it is fallacious..SG: The question was whether the office of the speaker or deputy is being misused? Answer is yes. When I receive a motion of no confidence, the confidence where it can be tested is the floor. I can always ask some member to generate disqualification proceedings under Chapter 10..SG: That the lack of confidence in speaker can make him decide the electoral college. The speaker cannot decide the voter list or electoral college..SG: The Governor order is not immune from judicial review, it is subject to judicial review..SG: The Governor’s order may answer the questions raised by My Lord, which were possibly not answered before. .SG: To the petitioner question was asked whether the 39 MLAs are not expressing confidence? They said no. But then the question was whether the Governor has verified. That answer can be found in the letter of Governor. .SG: Horse trading is one way of winning majority, but here direct threats to the 39 MLAs. The governor cannot ignore such issues..SG: What is to be seen has to be seen from the floor test. The governor has decided based on the circumstances. The source of the democratic powers is the floor of the assembly. If you have power, good, if not, so be it. Test it. .Sr Adv Singhvi: I said, there is not a single case, where Your Lordships have tied the hands of the speaker, and yet your lordship is told that the floor test must go on. .Sr Adv Singhvi: There was not a single case where the speaker’s hands were held on serious charges. When I repeatedly say that there is left hand denial on the efficacy on the tenth schedule and the right hand allows floor test to go on, the answer cannot be floor test to go on..Sr Adv Singhvi: Nobody is denying it is democratic. Despite tying hands on the tenth schedule, it is tried to be shown that, that will not have any bearing on the floor test. If they are disqualified, then they will not be members from inception is not argued..Sr Adv Singhvi: All of this is on the mesmeric issue of Nabam Rabia. Nabam Rabia is decided that in this case, the speaker cannot do anything and everything should go on, but speaker cannot decide disqualification. The writ should have been allowed..Sr Adv Singhvi: The argument I raised was that no confidence has to be raised only when the Assembly is in session. The second argument was that there is no confidence in the speaker. The language in constitution is removal, but there is not a single charge for the removal..Sr Adv Singhvi: The next argument is that the speaker is a suspect, the governor is a holy cow. Those who suggest that governor cannot be political but the speaker can, is living in an ivory tower..Sr Adv Singhvi: Has the Governor made any attempt of satisfying whether the request for floor test is proper or not? But the Speaker is always looked at with suspicion..Sr Adv Singhvi also points out that there was grievance raised against the Governor, wherein he was accused of sitting over appointments of 12 MLCs to the Maharashtra Legislative Assembly..Sr Adv Singhvi: A floor test held tomorrow and then the speaker holding them disqualified, the result is irreversible. .Sr Adv Singhvi: Your Lordships is being drawn into the merits of the case through Nabam Rabia. But that case is not related at all. It cannot be so simple to interpret Nabam Rabia like that. The issue is that Milords cannot allow constitutional error..Sr Adv Singhvi: A defector can always send a no confidence resolution against the speaker, and get away without considering facts invoking Nabam. There will be no tenth schedule..Sr Adv Singhvi: The question right now is should Your Lordships allow an artificial authority asking for floor test to be held tomorrow, or after a week, or prepone the other matter. They have not challenged the speaker’s rejection of their no-confidence..Sr Adv Singhvi: I am also raising objection to Mr. Kaul submitting. He cannot appear for any of the respondents admittedly. Sr Adv Kaul: My learned has not arraigned the proper parties and hence, he cannot raise objection like that..Arguments concluded. Judges are deliberating amongst themselves. The Bench is rising for a short while, will reconvene at 9 pm for order..Order: We have drafted this short order. We are not staying the floor test. We are issuing notice. You can file counter. We will hear on merits along with other cases on July 11. The result of tomorrow will depend on final outcome of this petition..Bench has assembled. .Senior Advocate Meenakshi Arora arguing on Nawab Malik’s plea. Justice Kant: What do you have to say, the elections are not happening tomorrow, what is the problem in allowing them?.Sr Adv Mehta: The Section 62(5) bars, and the constitutional validity is not challenged. It has been upheld. Justice Kant: Section 62(5) has been upheld. Sr Adv Arora: This is not an election. Tomorrow is a confidence vote. So this is not election per say. .Sr Adv Arora: This 62(5) no person shall vote at any election. We are not at the realm of an election at all is what I am submitting. Justice Kant: She has an arguable point. SG Mehta: Let me say something in their favour, I will leave it to Milords..SG Mehta: They can come in ED custody and go back, but only in this case. .Order: Both petitioners are in custody. The issue of Section 62(5) of the representation of people’s act is raised. Heard the counsel for both.We allow the applicants to participate in proceedings of floor test scheduled to be held tomorrow in the Maharashtra Legislative Assembly.Since the applicants are in custody pursuant to cases registered by Enforcement Directorate and CBI, the applicants will be accompanied with police to the Vidhan Sabha hall. Once proceedings are over, the applicants shall be brought back to judicial custody.Chitnis for the State government will inform the authorities concerned for compliance. IA is disposed off in above terms.