Are you a liberal? Then take up this question!

Congress Party MLA Shri. Sachin Pilot and 18 other MLAs served with Disqualification Notices by the Speaker of LA of Rajasthan under Tenth Schedule of the Constitution. It was alleged against them that they made some anti party statements and refusal to attend the party meetings on July 13 and thereby refused to obey party whip. Speaker of LA gave them time to file replies till July 17 to the Notices. The Rajasthan Legislative Assembly Members (Disqualification on the Ground of Defection) Rules, 1989 provides 7 days to file such reply and hence found contrary to the said rules.

 

These 19 MLAs approached HC for the action of Speaker. HC by its Order on July 21 directed the Speaker to maintain ‘status quo’ till the pendency of petition and to extend the time to submit the replies to disqualification notices. This Order was challenged by the Speaker in SC, however SC refused to stay the proceedings of HC. Speaker extended the time for submission of replies. In view of the fresh Order of HC, Rajasthan Speaker has withdrawn his petition challenging the first order dated July 21. It was his contention that HC has no jurisdiction to interfere with the Speaker’s decision that too at interim level i.e. before actually declaring the disqualification.

 

 

Chief Minister, Ashok Gehlot wished to call the assembly session to seek vote of confidence to which the Governor, Kalraj Mishra has refused to summon. This is going to be another interesting part in the ongoing drama.

The Writ Petition filed by the Sachin Pilot MLA group has a prayer for upholding their status as members of Rajasthan LA together with the declaration that the action of Members do not come within the purview of disqualification stated under para (2) of Tenth Schedule read with Article 191. Furthermore they have prayed for declaration that this clause 2(1) (a) under which the action is taken be declared as violative of the basic structure of the constitution and void and is ultra vires.

 

The facts of the case in nutshell are INC formed the Government in Rajasthan under Chief Ministership of Ashok Gehlot. The Petitioner members expressed some concerns and grievances against the Chief Minister. Therefore the Chief Whip called the Legislative party meeting on 13.7.2020 without any specific agenda. The said 19 MLAs didn’t attend the meeting. It is stated in the petition that the CM has ordered an investigation and thereby threatening MLAs for raising voices against the leadership. They were also under vigilance of local police and not allowed to move out of their houses. On the same day Sachin Pilot and others were removed as Dy. Chief Minister and State Ministers. On complaint of Chief Whip, Speaker of LA issued Notice of disqualification under 2 (1) (a) of the Tenth Schedule of the Constitution. In the meantime Sachin Pilot issued statements that he has no intention of leaving the party. It is seen that the said notice is bad in law as the grievances expressed by the MLAs being the healthy discourse of the pros and cons of one’s own political party. Not attending two party meetings also do not fall within the purview of above paragraph so as to make them disqualified on the ground of defection.

 

10th Schedule was added in the constitution by amendment in the year 1985 as an Anti Defection Law. As per the said amendment, a member shall be disqualified for being a member of the house

 

(a) if he has voluntarily given up his membership of such political party; or

 

(b) if he votes or abstains from voting in such House contrary to any direction issued by his political party without any permission and his abstention has not been condoned by such political party. In the draft bill besides the disqualifications mentioned above one more clause was written. The member becomes disqualified

 

(c) If he has been expelled from any political party.

 

But the same was omitted from the final bill after a debate. So it was very much clear that no disqualification would attract if he has been expelled by his political party. It would have created a chaos if a person elected by peoples mandate is disqualified due to internal disputes of political parties. Therefore only two conditions were kept, one if he voluntarily gives up membership of political party. Second, if he votes or abstains from voting in House contrary to the direction of his party and the said act has not been condoned by the party.

 

The action taken by the Speaker is disputable for various reasons. Freedom of speech and expression is an integral part of basic structure of Constitution. Members have not voluntarily given up their membership and it cannot be construed by any of their actions. They have neither joined any other political party. Asking change of leadership in the political party also cannot be considered as voluntarily giving up membership. Mere absence of members from party meeting also cannot be taken as giving up membership. Dissent cannot be treated as ‘Defection’. In this case, the implied behaviour of the Petitioners cannot be taken into consideration as they have expressly stated that they do not want to leave party. Thus the said members have not expressly and voluntarily left the membership of House. It is construed by the Speaker that they have left the membership by their implied acts of dissent statements against the leadership and not attending the party meetings. If their dissent is construed as the implied act under clause 2(1)(a), then it’s against the freedom of speech and expression granted under constitution and therefore is ultra vires and against the basic structure of constitution. It is argued by the Respondents that Court’s cannot interfere in the matter of disqualification at an interim level i.e. before actual decision of Speaker for disqualification and at the stage when only the notices are issued. For argument they have relied upon the verdict in Kihoto Hollohan’a case.

 

 

As per the 10th Schedule para 7, Courts were kept out of the purview of any question regarding disqualification. But the said clause was declared unconstitutional in the abovesaid decision. The Judicial review was and is the basic structure of the constitution and cannot be changed. The said judgment is relied upon by the Speakers and other Respondents which states that the Judicial review should not come in scene prior to the disqualification decision. But in the same judgment only, the interlocutory interference was allowed in grave and immediate situation.

 

The Rajasthan HC while admitting the petition has raised 13 important issues in the matter. Few of them are worth noting -

 

• Whether expression of dissatisfaction and strongly worded opinions against the party leadership can be a conduct falling within the meaning of ‘voluntarily giving up membership?

 

• Whether ‘whip’ as an instrument of party discipline only applies for actions expected out of legislators inside the House?

 

• Whether the Speaker is not in a position to adjudicate upon the said question of constitutionality as raised by the petitioners in this petition?

 

• Whether the notice issued by the Speaker is ex-facie violative of the essence of democracy and aims at throttling dissent against persons in power?

 

• Whether the words ‘voluntarily given up his membership of such political party’ in Paragraph 2(1)(a) of the Tenth Schedule take within their ambit, a criticism of the Chief Minister/manner of functioning of the State unit of the party, by an MLA, outside the House?

 

• If the answer to the above is in the affirmative, then, would not Paragraph 2(1)(a) be violative of the basic structure of the Constitution which includes Article 19(1) (a)?

 

Disqualification notice for inner party dissent is violation of freedom of speech. Dissent and debate are integral parts of democracy. The crucial question here is - can a political party which is not internally democratic, promise and practice democratic governance? Isn’t it against the spirit of constitutional morality and liberalism to avoid churning this question due to your specific political affiliation?