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The political tussle in Rajasthan brings into focus the larger question of whether a legislator’s voice can be shut down with the threat of disqualification. What does the Tenth Schedule say on this?

By Vivek K Agnihotri

In July 24, Sachin Pilot and his team of dissidents won the first round in the tussle with the Congress party. The interim order of the Rajasthan High Court on a petition from Pilot, the deputy chief minister, and 18 other “Young Turks” was a non-starter. The petition followed a notice served on them by the Speaker under the anti-defection law (the Tenth Schedule of the Constitution).

The Court had earlier extended the time limit prescribed by the Speaker for the petitioners to respond to his show-cause notice from three days to 10 in two instalments and directed the Speaker not to take any action on his notice till 5 pm on July 24. On that day, the Court said that there will be “status quo” until further orders in view of its acceptance of Pilot’s request to add the centre to the case so that its views on whether the anti-defection law applies to them could be also taken into account. However, the final order of the High Court as and when it comes would be subject to the outcome of the petition of the Speaker in the Supreme Court.

Meanwhile, Rajasthan Chief Minister Ashok Gehlot marched a group of Congress MLAs to Raj Bhawan claiming that he had the required numbers and called for an assembly session on July 27.

While the matter was pending before the Rajasthan High Court, the Speaker filed a pre-emptive petition in the Supreme Court challenging the decision of the High Court to extend the time limit for submission of replies by the rebel MLAs to his notice under the Tenth Schedule and, perhaps, in anticipation of any further orders from it. The petition stated that the order of the High Court was an affront to the powers of the Speaker. It was “illegal” and “perverse” and “destroyed the delicate balance envisaged by the Constitution between the legislature and the judiciary”. He alleged that the intervention of the High Court was premature because he is yet to decide the issue of disqualification. Judicial review, it was argued, cannot be available at a stage prior to the making of a decision by the Speaker. Thus, a quia timet (“because he fears”) plea seeking an injunction to restrain wrongful acts which are threatened or imminent but have not yet commenced, cannot be taken. Nor would interference be permissible at an interlocutory stage of the proceedings. It was further contended that proceedings under the Tenth Schedule are proceedings of the legislature and, as such, cannot be questioned in a court of law.

The high stakes in this political imbroglio can be gauged by the fact that Pilot and his team of dissidents are being represented by senior lawyers Harish Salve and Mukul Rohatgi. While the former has served as Solicitor General of India, the latter is a former Attorney General of India. Meanwhile, the Speaker is being represented by senior Congress leader and Supreme Court lawyer Abhishek Manu Singhvi. But ironically, that still didn’t stop Pilot from reaching out to him to seek his legal advice. Of course, Singhvi jocularly refused.

On July 23, the Supreme Court refused to stop the Rajasthan High Court from pronouncing its decision in the matter on July 24. The High Court’s ruling will, however, be subject to the final order of the Supreme Court, which will take up the case on July 27. The Court said that the larger question is whether a legislator’s voice of dissent can be shut down with the threat of disqualification. Can expressing dissent amount to voluntarily giving up the party membership under Paragraph 2 (1) (a) of the Tenth Schedule of the Constitution and invite anti-defection proceedings? The question is very serious and is about survival of democracy, and would require prolonged hearing. The judges questioned why the Speaker, a neutral person, should approach the Court at all.

The floor test on a confidence motion is expected to take place soon. If 19 MLAs are taken out of the equation, the party position in the 200-member assembly would undergo change. At present, the ruling coalition led by the Congress has a strength of 124, while the Opposition has 76 seats led by the BJP. If 19 MLAs are disqualified, the total strength of the assembly will fall to 181, with the ruling coalition reduced to 105, which would not destabilise the ruling coalition. However, if the Sachin Pilot group is allowed to vote in a confidence/no-confidence motion in defiance of the whip, the votes for the Opposition would rise to 95. In that event, the 17 members who are part of the Congress coalition, comprising 12 Independents, could tilt the balance.

In view of the legal proceedings pending in the courts and the plea of the rebels that the whip does not apply to the conduct of the MLAs outside the legislature, it is speculated that the government may convene a session of the assembly where some legislative business may be listed. If the whip issued to the ruling party MLAs to vote in favour of the Bill in the House is defied by the rebels, there will be a clear case under the anti-defection law, which could lead to their disqualification. The confidence vote may be sought thereafter.

The tussle between the old and the new has been perennial and the Sachin Pilot-Ashok Gehlot one is the latest. Speaker CP Joshi issued notices on July 15, 2020, to Pilot and 18 dissident Congress MLAs after the ruling party sought their disqualification. It was alleged that Pilot and his team had, despite requests, deliberately absented themselves from the meetings of the Congress Legislature Party (CLP) and conducted themselves in an openly hostile and prejudicial manner to the interests of the Congress and its government in Rajasthan and had thus conspired to bring down the elected government there. The petition concluded that all of these actions lead to the inescapable conclusion that the individuals have “voluntarily given up membership” of the Congress and therefore, attracted the provisions of Para 2 (1) (a) of the Tenth Schedule.

Pilot and others challenged the notice of the Speaker, inter alia, on the ground that he cannot serve them defection notices for failing to attend CLP meetings. Whips were not applicable to meetings held at homes and hotels but to proceedings within the precincts of the Legislative Assembly when the House was in session. Acts done outside the House were not violative of the anti-defection law. Disagreement with the “dictatorial functioning” of the chief minister, they said, was freedom of expression and not defection. However, a careful reading of the petition filed with the Speaker would reveal that the allegation is not one of violation of the whip but of acting against the interest of the party amounting to “voluntarily giving up membership” of the Congress.

The second para of the Tenth Schedule lists two grounds on which a legislator can be disqualified for defection. One, if he voluntarily gives up membership of his political party, and two, if he votes or abstains from voting in the House contrary to any direction issued by his party.

Further, the Supreme Court in several judgments, particularly in Zachillu Khusantho vs. State of Nagaland (1993), held that even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party. Thus, the act of voluntarily giving up the membership of a political party may be either express or implied. The Tenth Schedule, however, provides an exception to this too. As of now, if two-thirds of the members of a political party decide to merge with another party, disqualification on the ground of defection is inoperative.

Moreover, Paragraph 7 of the Tenth Schedule originally barred the jurisdiction of courts in respect of any matter connected with the disqualification of a member of a House. However, the Supreme Court, in Kihoto Hollohan vs. Zachilhu and Ors. (1992) struck down this provision as unconstitutional on the ground that it affected the power of judicial review of the Supreme Court and High Courts under Articles 136, 226 and 227. The Court held that the order of the Speaker, functioning as a tribunal, under the Tenth Schedule can be subject to judicial review on the grounds of mala fide, perversity, violation of constitutional mandate and violation of the principle of natural justice.

The ruling party in the Rajasthan assembly has, therefore, rightly argued before the Court that the Speaker enjoyed autonomous powers under the Tenth Schedule. The petition challenging the show-cause notice was, therefore, premature and the judiciary should not interfere till the order on the notices was passed. 

In the recent past, Courts have refused to interfere in a case of disqualification till the Speaker had given his verdict. At most, they have prescribed a time limit for the Speaker to take a decision. In one case of inordinate delay, however, the Court stepped in to make the decision on behalf of the Speaker. The decision of the Speaker and the time taken to arrive at it, however, often depends on the past political affiliation of the Speaker and the “nudge” he or she receives from the courts.

Of late, some Speakers of Legislative Assemblies have shown reluctance to draw the obvious inference from the conduct of “rebel” MLAs. The decision of the Speaker of the UP Legislative Assembly on July 13, 2020, in respect of Aditi Singh and Rakesh Singh is a case in point. In November 2019, the Congress party had petitioned the Uttar Pradesh Speaker, Hriday Narayan Dikshit, seeking Aditi Singh’s disqualification for defying the party whip and attending a 36-hour special session of the assembly convened by the Yogi Adityanath-led government on October 2. On the other hand, Rakesh Singh has been accused of working against Congress president Sonia Gandhi in Rae Bareli during the 2019 Lok Sabha campaign. While the matter was pending the decision of the Speaker, the petitioner approached the Allahabad High Court for appropriate direction to the Speaker. The Lucknow Bench of the Court then issued a notice to the Speaker on the issue of allegedly keeping pending the application of the Congress seeking disqualification of the two MLAs for anti-party activities. The bench listed the matter on July 14 with a direction to take appropriate steps to serve notices to the MLAs. However, Speaker Dikshit on that day quashed the party’s plea against these rebel lawmakers on the ground of lack of evidence. Singh too had defended her decision stating that she had always tried to walk the path that she felt was correct and she had risen above the party line and tried to talk about development, an argument analogous to the one advanced by Sachin Pilot.

In another case in Nagaland on July 14, 2020, the Speaker of the Nagaland Assembly, Sharingain Longkumer, dismissed the petitions for disqualification of seven MLAs of the opposition Naga People’s Front (NPF). The NPF had filed the petition against the lawmakers in 2019 for “wilfully” defying the collective decision to support Congress candidate KL Chishi in the Lok Sabha elections last year. The Speaker held that there were no sufficient grounds to presume that the MLAs had voluntarily given up membership of the NPF.

Disqualification for defection is a double-edged weapon. On the one hand, it has been argued that if its validity flows from the right to recall, Kihoto Hollohan (supra), why should there be exemption for a merger of political parties? On the other hand, the law, while deterring defections, also leads to the suppression of healthy intra-party debate and dissent. It restricts representatives from voicing the concerns of their voters in opposition to the official party line.

Even during the dawn of independence, whips used to be issued in the Constituent Assembly to Congress party members, but they did not silence everyone. Shibban Lal Saksena frequently spoke in defiance of it and was, apparently, never punished for the delinquency. And this is the burden of the plea advanced by Sachin Pilot while challenging the validity of Para 2 (1) (a) of the Tenth Schedule. The Supreme Court too has flagged this issue

—The writer was Secretary, Parliamentary Affairs from 2003-2005 and Secretary General of Rajya Sabha from 2007-2012

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