[BREAKING] Maharashtra Crisis: Supreme Court to pronounce order at 9 pm today on floor test [READ ARGUMENTS]

The Supreme Court will pronounce its order at 9 pm today in the plea by Shiv Sena camp challenging the direction of the Maharashtra Governor Bhagat Singh Kishyari to hold floor test in Maharashtra Legislative Assembly tomorrow..A bench of Justices Surya Kant and JB Pardiwala heard parties from 5 pm to 8.30 pm before rising for a short while to deliberate on the order to be passed..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.Subsequently, the Governor called for a floor test tomorrow prompting Shiv Sena to approach the top court..The plea filed by Shiv Sena whip Sunil Prabhu stated that the issue of disqualification of Members of Legislative Assembly (MLAs) is directly connected with the issue of a floor test, but the Governor proceeded to ignore the same while directing a floor test in a jiffy. "The Hon’ble Governor vide communication dated 28.06.2022 (which was received today i.e., on June 29, 2022 at about 9:00 am) has in complete defiance to the fact that this Hon’ble Court is seized of the issue of the disqualification proceedings, has in a desperate attempt to allow the members, who have incurred disqualification, a safe passage decided to hold a floor test on June 30, 2022," the plea filed through advocate Javedur Rahman said. Pertinently, the plea said the principle laid down by the top court in the case of Nabam Rebia, requiring the deferment of disqualification proceedings till the adjudication of the no-confidence motion moved against the speaker, cannot be extended to a situation where even a floor test that has the potential to bring down a government is allowed to be conducted.This would mean that delinquent MLAs who have erstwhile incurred disqualification on account of unprincipled defection are allowed to perpetuate their constitutional sin further and achieve their oblique motive in bringing down a government, the plea stated. .Arguments by Parties.Senior Counsel Abhishek Manu Singhvi, appearing for Prabhu, submitted that the entire voting pool will change if floor test is held after disqualification."The decision of the Speaker will change the pool who will be voting. Before plunging into the pool, the size has to be noted," he said."If on July 11, milords decides the petition, say the speaker’s bar is lifted, and certain MLAs are disqualified, then the test could have concluded the next day,"Singhvi said that if the floor test is held tomorrow, the case before the top court will become infructuous. "How will those proceedings become infructuous," asked Justice Kant. "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," said Singhvi."Is there a time limit for floor test? 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," Justice Kant asked."There is a bar of 6 months. The vote of confidence or no confidence has to be after 6 months or so," said Singhvi.."As far as disqualification issue is concerned, that matter is subjudice before us. We will determine it. How does the floor test depend on qualification or disqualification? Are these powers interchangeable or inter related," Justice Kant queried.Singhvi said that allowing MLAs who have been sent disqualification notices, to participate in floor test, will amount to allowing disqualified MLAs to vote. This is because if the MLAs are disqualified tomorrow, the same would operate from the date of notice. "What needs to be considered is that if disqualified, the MLAs will stand disqualified from June 21 (date of disqualification notice). If these MLAs are allowed to vote tomorrow, then mi lords would be permitting voting by MLAs who may be disqualified later. That goes to the root to the democratic principles," Singhvi replied..Singhvi also questioned the act of the Governor in showing undue haste in calling for floor test."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," he contended."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," Justice Kant asked."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," Singhvi replied.Allowing floor test to happen without waiting for disqualification petition would amount render the tenth schedule on defection inconsequential, Singhvi emphasised."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," Singhvi asked.Singhvi also said that the MLAs in order to give membership of their party need not expressly write or make statement to that effect and the same can be concluded from the conduct of the person. "A person to have given up voluntarily from the party, need not write and submit. His conduct can very well show," the Senior Counsel argued.."Is it correct that in the present case they want the opposition to form government," the bench queried."Yes, it says so in the letter of the Governor," Singhvi replied.He maintained that either the speaker should be allowed to decide the disqualification proceedings against the rebel MLAs or the floor test has to be stayed."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? 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," Singhvi maintained..Senior Counsel Neeraj Kishan Kaul, appearing for Eknath Shinde, said that the speaker cannot decide disqualification proceedings when no-confidence motion against him is pending. "You (Speaker) are seized of a matter, you know there are proceedings against you, you cannot proceed at all. It is a jurisdictional issue," Kaul said.However, pendency of disqualification proceedings is not a ground to stop floor test, he argued."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," Kaul contended.All the MLAs who constitute the house must undergo the floor test,he stated. "The proceedings before the Speaker will go on, but the floor test must go on," he submitted.The Supreme Court has categorically held that whether a person ought to be disqualified or not, is inconsequential to the floor test. "When the CM has lost confidence in the house, the moment the CM shows reluctance, it shows that he knows he has lost the majority. This is all the more reason to have a floor test," Kaul argued.Unless or until the decision of the governor, is shown to be unreasonable, it cannot be interfered with, Kaul argued."Assuming a floor test takes place, who are competent to participate," asked Justice Kant."Tomorrow if these people are disqualified, then the pool changes.. the Supreme Court has clarified that there is no connection with the floor test," Kaul responded.He also asked why the Thackeray camp was shying away from floor test."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 not to hold test," Kaul said.The more a floor test is delayed, the more is the damage to the Constitution, he said."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. If you want to prevent horse trading, then the best way to do it is floor test," he submitted."Is it your argument that there can be a very dangeorus move against democratic morality, that the government is using office of disqualification because it knows it lost majority," Justice Surya Kant asked.Kaul also questioned the arguments against the Governor. "My learned friend is asking why tomorrow, because the governor has found material and he deems it fit that there be a majority test. 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. 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," Kaul demanded..Regarding the tenth schedule argument advanced by Singhvi, Kaul said, "Your disqualification petition says they have invoked wrath of Tenth Schedule. But these are completely distinct from the floor test."Pertinently, Kaul said that the Shinde camp is the actual Shiv Sena."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," Kaul underscored..Senior Counsel Maninder Singh also supported Kaul's arguments."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," Singh claimed.Regarding the deferment of disqualification proceedings, Singh said that it was nothing but a step to ensure compliance with natural justice."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," Singh contended..Solicitor General Tushar Mehta, appearing for the Governor, contended that the argument that the top court had interdicted the jurisdiction of the speaker is incorrect. "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," he submitted.He said that the question boils down to 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," he said.The speaker cannot decide the voter list or electoral college, Mehta submitted. The SG further contended that the Governor cannot ignore direct threats to 39 MLAs. "Horse trading is one way of winning majority, but here direct threats to the 39 MLAs. The Governor cannot ignore such issues," he said.The floor of the assembly is where democratic powers originate, he stated."The source of the democratic powers is the floor of the assembly. If you have power, good, if not, so be it. Test it," the SG said..Singhvi in his rejoinder arguments contended that there has not been a single instance of speaker being interdicted from proceeding with disqualification petition while allowing floor test to go on. "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. 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 (by Shinde camp)," Singhvi said.He further submitted that the no confidence against speaker can be raised only when assembly is in session. He also questioned how speaker can be dubbed a suspect when Governor is a holy cow."Their 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," he contended..Read more about the petition here.