The Rajasthan high court’s hearing of the case, Prithviraj Meena and Others v Hon’ble Speaker, Rajasthan Legislative Assembly and others has given rise to some constitutional issues of seminal importance to Indian democracy.
One of these is the elected representative’s right to exercise freedom of speech and expression, as guaranteed under Article 19 (1)(a) of the Constitution. There is no doubt that it is not an absolute right, but subject to reasonable restrictions under Article 19(2). The state can make any law in order to impose reasonable restrictions on the exercise of the right in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Any restriction which does not fulfil these grounds is constitutionally unreasonable.
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Paragraph 2(1)(a) of the Tenth Schedule to the constitution enables disqualification of a member of a house on the ground of defection, if he or she has voluntarily given up his membership of such political party. Can this provision be construed as restricting the right of a member to criticise his party and the government in public? It is clear that none of the grounds in Article 19(2) can be invoked to support such an interpretation.
The speaker of the Rajasthan legislative assembly has, in his notices sent to the rebel MLAs on why paragraph 2(1)(a) cannot be invoked against them, referred to some allegations as mentioned in the complaint submitted to him by the chief whip of the Congress Legislature Party, Mahesh Joshi. These are:
- One of the MLAs publicly called for a floor test against his own party and the government of which he himself was a part;
- Another MLA publicly alleged that the people of Rajasthan had been cheated by the Congress government;
- The rebels have gathered and stayed in a hotel ITC Grant Bharat at Manesar, Haryana, which is outside the state of Rajasthan just to flout the directions to attend meetings of the Congress Legislature Party convened twice.
Rajasthan speaker C.P. Joshi addresses the press in Jaipur. Photo: PTI
The rebels’ statements to the media – which do not indicate any overt or implied support to other political parties – and their absence in CLP meetings have been interpreted as hostile and prejudicial to the interests of the party and its government.
None of the three allegations pertains to the rebels actually joining another political party or to an inference that they might. Even if such an inference is implied, the complainant does not make the party which they are likely to join explicit. Is there an alleged desertion of the party by the member on the date of the complaint? Then, the notice can be justified on the ground that prima facie, paragraph 2(1)(a) is attracted. Conduct of the member, subsequent to the complaint, should not be considered to sustain a notice.
If any notice is sustainable, we head down a slippery slope: tomorrow party leaders may complain that the rebel legislator did not return the phone call, or did not stand up when the leader entered the meeting room, and therefore, paragraph 2(1)(a) kicked in.
If grounds other than deserting the party can be considered for issuing a valid notice by the presiding officers, then the concerned legislator has a valid reason for apprehending an immediate disqualification by a partisan speaker, resulting in the premature termination of his tenure and a prolonged legal battle. This will have a further debilitating influence on his right to pursue a political career with his freedom of expression intact.
The Rajasthan speaker’s notice then relies on the Supreme Court’s ruling that in cases where the conduct of the legislator leads inescapably to the inference of his or her desire to “voluntarily give up membership of the party”, then they attract the provisions of paragraph 2(1)(a), and must be disqualified as “voluntarily” having resigned from the party membership. No one disputes this claim.
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Supreme Court verdicts
The notice relies on the Supreme Court’s judgments in Rajendra Singh Rana v Swami Prasad Maurya (2007), Ravi S. Naik v Union of India (1994) and Dr.Mahachandra Prasad Singh v Chairman, Bihar Legislative Assembly (2004).
In Rajendra Singh Rana, 13 MLAs of the Bahujan Samaj Party joined the Samajwadi Party, and therefore, invited disqualification by the Supreme Court itself, in view of the Uttar Pradesh speaker’s failure to act on the complaints.
In Ravi S. Naik, two disqualified MLAs of Maharashtrawadi Gomantak Party (MGP) did not deny the fact that they met the Goa governor in the company of Congress (I) legislators to stake claim to form an alternative government under the Congress (I) leader, leading to the inference that paragraph 2(1)(a) was attracted.
In Mahachandra Prasad Singh, the petitioner was elected to the Bihar legislative council as a Congress candidate, but contested a subsequent Lok Sabha election as an independent candidate, giving rise to a clear inference that he had given up the membership of his former party, letting 2(1)(a) to kick in.
Indeed, case law supports the proposition that the conduct envisaged under 2(1)(a) is incomplete unless the legislator concerned openly associates himself with another party, or abandons his association with the party which fielded him in the election. In the absence of a definition within the Tenth Schedule as to what constitutes ‘voluntarily giving up membership’, it is case law which can guide us on how to infer it if there is no formal resignation by a member from the party which fielded him as a candidate in an election.
Supreme Court building. Photo: The Wire
Indeed case law on the subject has been evolving. In G.Viswanathan v The Hon’ble Speaker (1996), two legislators who were expelled from the AIADMK later joined another party, while continuing as unattached members of the assembly. The Supreme Court upheld their disqualification by the speaker, although their relevant conduct had its origin in their expulsions.
In the recent disqualification of Sharad Yadav from the Rajya Sabha, both the Delhi high court and the Supreme Court refused to consider his post-disqualification conduct of having joined another party as a factor attracting 2(1)(a). Yadav was disqualified merely for publicly criticising his party programmes and policies. The Delhi high court is yet to decide his petition against disqualification by the chairman of the Rajya Sabha, acting on a complaint by another party member.
In Balchandra L.Jarkiholi and Ors v B.S.Yeddyurappa (2011), the majority judges of the Karnataka high court’s three-judge bench had ruled that withdrawal of support to the government led by the party leader would attract 2(1)(a). The Supreme Court set it aside and upheld the minority judgment, which clearly held that expressing a lack of confidence in the leader of the legislature party cannot attract 2(1)(a). Short of deserting the party, the rebels cannot be disqualified. Period.
In Prithviraj Meena, the Rajasthan high court has framed 13 questions to resolve the rival contentions of the rebels and the Congress. The first among these reads:
Whether the judgment of the Hon’ble Supreme Court in Kihoto Hollohan v Zachillhu [1992] and others has tested the constitutionality of Paragraph 2(1)(a) of the Tenth Schedule to the Constitution of India only with the touchstone of ‘crossing over’ or ‘defection’ and the court was never called upon to answer, much less the question of intra-party dissent?
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Rather than schedule a detailed hearing on this question, the bench could well have hit the search key while reading the judgment delivered in Kihoto Hollohan, to know how many times paragraph 2(1)(a) figures in it. While paragraph 2(1)(b) occurs six times, paragraph 2(1)(a) occurs only once by way of introduction in the majority judgment, delivered on behalf of three judges by Justice M.N. Venkatachaliah. The minority judgment, delivered by Justice J.S. Verma (on behalf of himself and Justice Lalit Mohan Sharma) does not refer to both the provisions as it found unnecessary to examine issues other than the absence of judicial review in the legislation.
The majority judges in Kihoto severed paragraph 7 – excluding judicial review – from the Act, and held it alone unconstitutional. The minority judgment held that the doctrine of severability cannot be applied to a Bill making a constitutional amendment where any part thereof attracts the proviso to clause (2) of Article 368, mandating ratification by the specified number of state legislatures, before it is presented to the president for his assent. Therefore, the minority judges held the entire Tenth Schedule as unconstitutional.
File photo of Sachin Pilot and Ashok Gehlot at the AICC headquarters. Photo: PTI
Does it mean that Kihoto maintained a mysterious silence on the value of dissent within political parties? The majority judges observed in paragraph 16:
“On the one hand there is the real and imminent threat to the very fabric of Indian democracy posed by certain levels of political behaviour conspicuous by their utter and total disregard of well-recognised political proprieties and morality. These trends tend to degrade the tone of political life and, in their wider propensities, are dangerous to and undermine the very survival of the cherished values of democracy. There is the legislative determination through experimental constitutional processes to combat that evil.
“On the other hand, there are, as in all political and economic experimentations, certain side-effects and fall-out which might affect and hurt even honest dissenters and conscientious objectors. These are the usual plus and minus of all areas of experimental legislation. In these areas the distinction between what is constitutionally permissible and what is outside it is marked by a ‘hazy gray-line’ and it is the Court’s duty to identify, ‘darken and deepen’ the demarcating line of constitutionality – a task in which some element of Judges’ own perceptions of the constitutional ideals inevitably participate. There is no single litmus test of constitutionality. Any suggested sure decisive test, might after all furnish a “transitory delusion of certitude” where the “complexities of the strands in the web of constitutionality which the Judge must alone disentangle” do not lend themselves to easy and sure formulations one way or the other. It is here that it becomes difficult to refute the inevitable legislative element in all constitutional adjudications.”
Indeed, in the words of majority judges in Kihoto, dissent becomes defection under paragraph 2(1)(b) only if a legislator, while remaining a member of the political party which had set him up as a candidate at the election, votes or abstains from voting contrary to “any direction” issued by the political party.
Although the majority judges did not elaborate what they meant, it is clear that they considered paragraph 2(1)(a) as a grey area which can be resolved by looking at the facts and circumstances of each case by the judge concerned. It is after this nuanced discussion that the majority judges held in paragraph 21 of their judgment that paragraph 2 of the Tenth Schedule (in its entirety) is valid.
“Its provisions do not suffer from the vice of subverting democratic rights of elected members of Parliament and the Legislature of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended,” they ruled.
They held:
“The provisions are salutary and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections. The contention that the provisions of the Tenth Schedule, even with the exclusion of Paragraph 7, violate the basic structure of the Constitution and affect the democratic rights of elected Members and, therefore, of the principles of Parliamentary democracy, is unsound and is rejected.”
To conclude, the rebels may be justified in seeking the quashing of the notice issued to them by the speaker on the ground that paragraph 2(1)(a) is not attracted by their conduct, but their plea to declare paragraph 2(1)(a) as unconstitutional on the ground that the notice is erroneous may mean they are throwing the baby out with the bathwater.