Rajasthan High Court: A Division Bench of Indrajit Mahanty, CJ and Prakash Gupta, J., directs ‘status quo’ to be maintained in the case wherein Sachin Pilot, the former deputy Chief Minister of Rajasthan, along with 18 other Congress MLAs, has challenged the disqualification notice issued to them by the Rajasthan Legislative Assembly Speaker asking them to explain anti-party activities.
Single Judge Bench [Initial Petition]
Present petition was listed before the Single Judge Bench of Rajasthan High Court on 16-07-2020 and the in the order pronounced, Court permitted the petitioners to incorporate additional ground regarding the constitutional validity of the provisions of Tenth Schedule of the Constitution of India.
What lead to the present matter?
Assembly Elections in the State of Rajasthan were held on 17-12-2018 and Congress had formed its Government under the Chief Ministership of Ashok Gehlot. Petitioner — 6, Sachin Pilot was appointed as the Deputy chief Minister.
Being aggrieved in the manner that the Chief Minister was functioning with assertion on the fact that voices of the masses were not being heard by the Chief Minister, petitioner expressed their grievances against the Chief Minister.
On 13-07-2020, Chief Whip called for a Legislative party meeting without providing for a specific agenda and following the meeting Chief Whip, Congress Legislative Party, Rajasthan Assembly, issued a notice was issued wherein the following was stated:
“…in view of the exigencies of the emergent political situation prevailing in the State on account of repeated attempts at defections and to discuss and draw out a political strategy to address the same, another meeting of the Congress Legislative Party is being called at 10.0 AM tomorrow i.e. July 14, 2020 at the Fairmont Hotels and Resorts, 2, RIICO, Kukas, Jaipur.
You are requested to attend the meeting of the Congress Legislative Party. Any failure to participate without providing valid and adequate reasons in advance in writing to the undersigned, it will be deemed to be clear and categorical evidence of your intention to disassociate from the Indian National Congress and its ideology and will invite action as per the relevant statute and the Constitution of India.”
Ploy to threaten the petitioners
Chief Minister had ordered an enquiry by the Special Operations gROUP (Rajasthan Police) to investigate the petitioners, which seemed no more than a ploy to threaten the petitioners and the other MLAs from raising their voices against the leadership within the party.
On the same day, petitioners were given to understand that they were removed as the Deputy Chief Minister and the State Ministers.
On 14-07-2020, Chief Whip filed a complaint under Paragraph 2(1)(a) of the Tenth Schedule of the Constitution ofIndia. After which respondent 1 issued a notice against the petitioners seeking their explanation within 2 days.
Petitioner-6, Sachin Pilot said that the notice issued is bad in law and liable to be quashed.
Right to Dissent
Senior Counsel, Harish Salve on behalf of the petitioner submitted that the 10th Schedule of the Constitution of India makes provisions as to disqualification of the members of the house of Parliament or legislative Assembly on ground of defection.
Paragraph 2(1)(a) of 10th Schedule envisages that a member of a House belonging to any political party shall be disqualified for being a member of the House if he has ‘voluntarily’ given up his membership of such political party.
Further, adding to its contentions, he added that in the present case, petitioners have not voluntarily given up their membership, hence they have a right to dissent against local leadership and agitate grievances of the people and the said right flows from Article 19(1)(f) of the Constitution of India.
Malafide Intention
Notice given to the petitioner was o disassociate the petitioner from the INC without providing any valid reasons.
Right of free Speech and Right of Conscience
If one protests against working of the Chief Minister in public or private, it is his right of free speech and conscience.
Notice given in the present case was premature and unconstitutional.
Speaker not working like an Independent Tribunal | No “Floor crossing”
On 14-07-2020, he had issued notice only on the basis of Chief Whip’s complaint.
Legislature clearly envisaged the need to provide for “floor crossing” on the basis of honest dissent. As many as 19 elected representatives conducted themselves with a particular course of action, which in itself lends credence and reassurance to the presumption of their bonafides.
Mere absence of a member of the Legislative Assembly from the meeting of the legislative party ought not to be treated as an act of voluntarily giving up the membership of the political party.
‘Dissent’ by itself cannot be treated to be ‘defection’ until and unless the act akin to ‘floor crossing’ occurs.
Concluding his set of arguments, Senior Counsel, Harish Salve submitted that Court needs to examine in its jurisdiction under Article 226 of the Constitution the width and the scope of Paragraph 2(1)(a) of the Tenth Schedule on the touchstone of the basic structure doctrine, as evolved and as laid down by the Supreme Court from time to time.
Senior Counsel, Mukul Rohatgi relied on the Supreme Court Judgment in Supreme Court Advocates-on-Record Assn.v. UOI, (2016) 5 SCC 1, and submitted that,
“…if free dissent is construed to give up membership of the political party, it would tantamount to invasion over the right of free speech and expression enshrined in Article 19(1)(a) of the Constitution.”
Impugned notice is non-speaking, malafide and it also does not speak about the situation to recoup the Chief Minister.
Decision
Court in view of the above framed the following 13 questions to be considered:
- Whether the Supreme Court Judgment in Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, has tested the constitutionality of Paragraph 2(1) (a) of the Tenth Schedule of 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?
- Whether, in the facts and circumstances of the present case, Paragraph 2(1)(a) of the Tenth Schedule of the Constitution, is violative, in particular to the basic structure of the Constitution of India including the fundamental right of freedom of expression guaranteed by Article 19(1)(a) of the Constitution of India and thus void?
- Whether the expression of dissatisfaction or disillusionment and the strongly worded opinions against the party leadership can be a conduct falling within the scope of Paragraph 2(1)(a) of the Tenth Schedule of the Constitution?
- Whether the foundational facts based upon which the Speaker issued notice, are the facts which if not constitutionally construed in the aforesaid context, would render the provisions itself unconstitutional?
- Whether the manner of exercise of jurisdiction of the Speaker has to be differentiated from the existence of jurisdiction of the Speaker to commence a proceeding against any legislator under Paragraph 2(1)(a) of the Tenth Schedule of the Constitution?
- 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 by way of the instant notice, the voice of the petitioners seeking a leadership change within the party expressed in the most democratic manner is sought to be stifled and the petitioners are threatened with abdication their right to express their reservations on the functioning of such leadership?
- 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 issue No.(x) 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)?
- Whether the action of the Speaker including the haste in issuing notice dated 14.07.2020 is not malafide, an abuse of power, in breach of natural justice and also betrays a foregone conclusion?
- Whether the Judgment of the Supreme Court in Kihoto Hollohans’s case (supra) can be understood so as to bar the High Court from examining the aforesaid questions?
Hence, the Court held that the present petition is maintainable. [Prithviraj Meena v. Speaker, 2020 SCC OnLine Raj 1149, decided on 24-07-2020]
