Jaipur/New Delhi: The Rajasthan high court has ruled that despite an existing judgment of the Supreme Court on the constitutionality of the anti-defection law, the petition filed by the group of dissident Congress MLAs loyal to Sachin Pilot is admissible and has directed that the assembly speaker not take any further action on show cause notices to the 19 legislators until further notice.
Unless the Rajasthan assembly speaker moves an appeal in the Supreme Court, the decks are now clear for the substantive points in the Pilot group’s writ petition before the high court to be argued, a process for which no time limit has been set.
The case was heard by a division bench of Chief Justice Indrajit Mahanty and Justice Prakash Gupta. The 32-page judgment, delivered on July 24, does not flesh out the reasoning on the basis of which it concluded that the Pilot group’s petition was “maintainable”.
Though it frames a set of 13 questions arising from the submissions made by the Rajasthan speaker’s counsels and those of the dissident group, it merely states: “In view of the questions framed hereinabove, we are of the considered view that the present writ petition is maintainable. The writ petition is admitted” on three prayers – A, B and E – but not on two others.
“After completion of filing of pleadings of the parties and the intervenors, Counsel for the parties shall be at liberty to file an application for early hearing of the writ petition. 53. Till then, the ‘status quo’ as exists today viz-a-viz impugned notices dated 14.07.2020 shall be maintained.”
The court has ordered status quo on the disqualification notices, which means that speaker C.P. Joshi will not be able to conduct disqualification proceedings against the rebel MLAs.
The judgment is deferred until the Supreme Court decides the question of law in the matter.
Rajasthan high court order on MLAs disqualification by The Wire on Scribd
Soon after the high court order, chief minister Ashok Gehlot and a group of MLAs arrived at the Raj Bhavan and staged a protest, saying the governor was not allowing the assembly session to take place.
“As per the cabinet’s decision, we had sent a letter to the Governor yesterday requesting him to call an assembly session to discuss the political situations as well as the COVID-19 situation post the lockdown, but haven’t yet received any response. We believe that due to pressure from above, the Governor is not letting the assembly session take place. Why don’t you get the floor test done? It might happen that the entire state would gherao the Raj Bhavan, then it will not be our responsibility,” Gehlot told reporters.
Congress MLAs outside the Raj Bhavan in Jaipur. Photo: Special arrangement
What the rebels MLAs have asked for
The rebel MLAs in their petition had asked the high court to:
- Declare paragraph 2[1][a] of the Tenth schedule, which deals with disqualification on ground that a member has voluntarily given up his/her membership of original political party, to be violative of the basic structure of the Constitution of India.
- Quash and set aside the show cause notice issued by the Speaker of the Rajasthan Legislative Assembly on July 14, 2020.
- Uphold the status of the petitioners as Members of the House on account of them continuing to be in the Indian National Congress
- Declare that alleged actions of the petitioners (rebel MLAs) are not ground for disqualification.
- Declare Paragraph 2(1)(a) of the Tenth Schedule as ultra vires
On Friday, the court allowed (A), (B) and (E) of the prayer, while rejecting (C) and (D). That means the high court will now hear arguments on whether Paragraph 2(1)(a) of the Tenth Schedule (the anti-defection law) is ultra vires and violative of the basic structure of the constitution.
The bench also set aside the show cause notices issued by the Rajasthan assembly speaker to the rebel MLAs, asking them to submit their responses on the disqualification petition submitted by the Ashok Gehlot government. But it neither upheld the status of the rebel MLAs as members of the house nor declared that their conduct is not a ground for disqualification.
The high court also allowed the application of the petitioners requesting that the Centre be made a party to the case.
Speaker had asked for rebel MLAs’ response
The Gehlot government, through its chief whip Mahesh Joshi, had submitted a petition to speaker C.P. Joshi on July 14 listing reasons for the MLAs’ disqualification, including missing Congress Legislature Party (CLP) meetings, conspiring to topple the elected government in Rajasthan, hostile conduct and remaining inaccessible.
The state assembly secretariat issued notices to all of them, asking to send their written submissions within three days (July 17), failing which ex-parte action will be sought against them.
The rebel MLAs then moved to high court, primarily stating that the failure to attend meetings of the CLP, which was listed as a reason in the disqualification petition moved by the Gehlot government, is not a ground for disqualification.
The Rajasthan high court initially barred the speaker from seeking any action against the rebel MLAs till July 21. On Tuesday, the court said it would announce its verdict on Friday, requesting the speaker to defer action against the rebel MLAs till then.
On Wednesday, Joshi moved a Special Leave Petition (SLP), against the Rajasthan high court order passed on Tuesday that restrained Joshi from “calling replies and conducting disqualification proceedings” against 19 rebel Congress MLAs including Sachin Pilot till Friday (July 24).
During the hearing of the case in the high court, Harish Salve, counsel for Pilot and the MLAs supporting him, questioned the notice and said, “Was there was any application of mind [when the notices were issued by the speaker]?”
He added that issuance of a disqualification notice over disagreements within the party violates fundamental rights.
Former attorney general Mukul Rohtagi also said, “Disqualification notice by Assembly Speaker was issued to Sachin Pilot and other MLAs on the same day of complaint. Less time has been given for reply than as stated in rules. No reasons recorded for issuing the notice.”
From the respondents’ side, Abhishek Manu Singhvi countered that court proceedings in this case were “non-maintainable, premature and without jurisdiction”.
He called the petition premature as the speaker has not yet disqualified the MLAs.
Highlighting that courts have a limited role in the matters dealing with the Tenth Schedule of the Indian constitution, he said, “There was no scope of interference by a court over the show-cause notices issued by the Speaker.”
Singhvi further added that the show-cause notices were issued within the purview of speaker’s power and there was no need to record reasons for it.
He said that it is up to the speaker whether to consider not attending a party meeting and being critical of the party as grounds of disqualification or not.
The respondents in the case are yet to decide on filing an appeal against the high court order. “I have not received any instruction to file the SLP as of now. The concerned people are studying this judgment,” Sunil Fernandes, advocate-on-record, Supreme Court told The Wire.