The Rajasthan political crisis is playing out in multiple cases in the courts of law. Sachin Pilot, the former Deputy Chief Minister of Rajasthan approached the Rajasthan High Court against the notice of disqualification issued against him by the Speaker of the Assembly and the court accordingly granted stay. Aggrieved, the Speaker, CP Joshi, approached the Supreme Court seeking a stay on the proceedings in the HC, which was rejected by the apex court.
Yet again, Joshi filed another petition for stay before the SC, which was then withdrawn as it was deemed infructuous by the petitioner. Kapil Sibal, however, weighed in on the possibility that they may approach the court again after reading detailed orders of the Rajasthan HC.
Proceedings before Rajasthan HC
Joshi had served disqualification notices upon Sachin Pilot, former Deputy Chief Minister of the state and 18 other dissident MLAs of the Congress party. When Pilot approached the High Court, the bench led by Chief Justice Indrajit Mahanty, on July 24, ordered a status quo and thus effectively stayed the disqualification notices against the dissident MLAs. As per clause 2(1)(a) of the Tenth Schedule of the Indian Constitution, a legislator may be disqualified if they have voluntarily given up their membership of a political party on whose ticket they won the election. Pilot and the 18 MLAs contended that their act is not an act of defection and only an act of dissent and hence does not qualify for defection. They also contended before the court that the disqualification notices were only an attempt to stifle their voices while they only sought a change of leadership in the party.
This was objected to by the Speaker of the state Assembly saying that the court cannot interfere at the notice stage. This view was reiterated by Senior Advocate Kapil Sibal who was representing the Speaker in the Supreme Court against the High Court’s intervention. He said that the court can only interfere after the Speaker’s decision and the same can be challenged on four grounds – decision being malafide, contrary to constitutional mandate, perversity and violation of principles of natural justice. He cited the 1992 Supreme Court judgement in the Kihoto Hollohan case whereby a five-judge constitution bench had prevented the intervention of the court prior to the decision of the Speaker in the disqualification. No interference would be permissible at an interlocutory stage of the proceedings, the court had said.
Expressing his disdain over the high court not following the precedent, Sibal told The Print, “So if courts don’t wish to follow the law, don’t give any reasons why the law should not be followed and are not bound by precedent, then I don’t know where democracy stands”.
Further, Pilot’s petition in the high court also challenges clause 2(1)(a) of the Tenth Schedule of the Indian Constitution saying that the provision cannot be so widely construed so as to jeopardise the freedom of speech and expression of the member of the house. “Mere expression of dissatisfaction or even disillusionment against the party leadership cannot be treated to be conduct falling within the clause 2(1)(a) of the 10th Schedule of the Constitution of India,” said the petition. The petition demands the declaration of the clause as ultra vires of the basic structure of the Constitution.
The court also allowed impleadment of the Centre as a party to the case on the application of rebel Congress MLA Prithviraj Meena.
In the Supreme Court
The Speaker had moved the apex court when the first order from the high court on July 21 came, requesting Joshi to defer action on the disqualification notices. The apex court, however, refused to stay the proceedings before the Rajasthan High Court and allowed it to proceed and adjudicate upon the case. The bench comprising Justices AK Mishra, BR Gavai and Krishna Murari heard the parties and during the hearing of July 23, Justice Mishra said, “We are not saying about the Rajasthan case, but assume a leader has lost the faith of persons. While remaining in party they cannot be disqualified. Then this will become a tool and no one can raise their voice. The voice of dissent in a democracy cannot be suppressed like this”.
“As the high court has already heard the matter after prolonged arguments and reserved the order, we are not staying the passing of the order [by the high court]. However, whatever order is passed shall be ultimately subject to the outcome of this petition,” held the three judge bench on July 23.
Joshi, once again approached the court attempting to get the stay order passed by the Rajasthan High Court cancelled. However, the Congress seems to have had a change of mind and at the hearing scheduled for 11 A.M today, the petition was withdrawn. Sibal representing Congress said that since the high court had passed a detailed order on July 24 and they had challenged the July 21 before the apex court, and the petition had become infructuous. He further said that the July 24 order raised issues pertaining to the interpretation of the Tenth Schedule of the Constitution and they had to “weigh their legal options”.
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