It's a paradox in Rajasthan. MLAs are neither in assembly nor in constituencies, but in resorts. Congress asks speaker to disqualify them. Pilot does not attend CLP (Congress Legislative Party) but goes to the High Court. High Court 'requests' Speaker to wait. Speaker wanted the Supreme Court to stay the High Court's 'request'. In return gets a direction from the Supreme Court to follow High Court. Supreme Court asked High Court to go-ahead but says its order will be under their purview. And High Court 'directs' Speaker for status quo. What a wonderful coordination! And status quo on horse trading must be implemented by all. If not, they can be punished for contempt of court!
The political crisis caused by internal squabbles of Congress party and invisible hand of rival party to topple the government through horse trading has metamorphosized into constitutional conflict -Legislature vs Judiciary. Can the floor become the court? It is not the judgement of floor or court, but that of people which reflects a democracy. Both have a duty to secure the voter's verdict.
As basics are confined to classrooms, the dynamics of politics has become the law and order. The students of Constitutional law should study the constitutional conflicts in the High Court order directing the Speaker not to act.
Point 13 can kill 12 points
First and foremost, it is self-contradictory. Declaring and taking up the petition of Congress rebel Sachin Pilot as 'maintainable' is conflicting with the 13th issue framed in the same order –
(xiii) Whether the judgment of the Supreme Court in Kihoto Hollohan's case can be understood so as to bar the High Court from examining the aforesaid questions?
The High Court bench genuinely doubts the bar operating against it on examining the 12 questions. If 13th question is answered yes, no other question stands. Is it possible to say 'no' to it?
Second significant issue is, the age-old constitutional doctrine of administration of justice – the precedent in the 1992 judgment of the Constitution Bench of Supreme Court in Kihoto Hollohan Vs. Zachilhu validating the constitutionality of tenth schedule with specific reference to paragraph 2, has been ignored. It prevents all the courts including the Supreme Court to reopen the decided question unless a larger bench wanted it.
Stepping on the floor!
Third issue is the sovereign status of Rajasthan Legislature as an independent estate is undermined with breach of doctrine of separation of powers or non-interference with legislative functioning. At the initial stage the High Court gave due respect to the Speaker by 'requesting' him not to act on petitions against Pilot and other 18 members, until 24th July. But, within three days the High Court treated him as subordinate and directed him not to act on petitions until the Court's decides on the Constitutionality of the tenth schedule.
Speaker's authority is rooted in Paragraph 6(1) of the Tenth Schedule, which says: "If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final."
In Kihoto Hollohan vs Zachillhu And Others (1992), the apex court upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs, with a rider that Speaker's final decisions are subject to judicial review, however, it added,
"having regard to the constitutional scheme in the Tenth Schedule judicial review did not cover any stage prior to the making of ta decision by the Speakers/Chairmen; and no quia timet (injunction orders like that was given by Rajasthan HC in this case) actions are permissible".
This is the statement of law by three judges binding precedent on any Constitutional Court, including the Supreme Court.
It was reiterated in 2019, while hearing the Karnataka Legislators case on 17th July 2019 by a bench comprising of Chief Justice of India Ranjan Gogoi,Justice Deepak Gupta and Justice Aniruddha Bose, which said that the discretion of the Speaker to decide on the resignations of the 15 MLAs "should not be fettered by any direction or observation" of the court. However, the bench held that the rebel MLAs "ought not to be compelled to participate in the proceedings of the…House… and an option should be given to them that they can take part in the said proceedings or to opt to remain out of the same".
The Supreme Court also examined in Kihoto whether it was fair to give so much broad powers to Speaker given that there is always a reasonable likelihood of bias. The majority (3-2) ruled yes. Justices M N Venkatachaliah and K Jayachandra Reddy answered:
"The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in the Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in them should not be considered exceptionable."
In Paragraph 42 the Kihoto explained it further:
"In the result, we hold.that the Tenth Schedule does not, in providing for an additional grant for disqualification and for adjudication of disputed disqualifications, seek to create a nonjusticiable constitutional area. The power to resolve such disputes vested in the Speaker or chairman is a judicial power. That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned".
The minority view in Kihoto was drastically different. Dissenting Judges Lalit Mohan Sharma and J S Verma, JJ. disagreed saying:
"The tenure of the Speaker is dependent on the continuous support of the majority in the House and, therefore, he does not satisfy the requirement of such an independent adjudicatory authority." Two judges further added: "An independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as an attribute of the democratic system which is a basic feature of our Constitution… [the Speaker's] choice as the sole arbiter in the matter violates an essential attribute of the basic feature."
This may be the weakest point of Tenth Schedule. But they did not invalidate Para 2 or the entire Tenth Schedule.
At the most, High Court could have left the matter to be dealt appropriately with Constitutional Bench of Supreme Court with higher number of judges to overrule Kihoto judgment. Judicial discipline requires the High Court to comply with this mandate.
Re-doubting the constitutionality
Fifthly, the 1992 Supreme Court order upholds entire Paragraph 2 of Tenth Schedule including 2(1)(a), on constitutionality of which High Court wants to hear arguments. Kihoto order has specifically referred to paragraph 2(1) relating to a Member of the House belonging to a political party by which he was set up as a candidate at the election. Under Paragraph 2(1) (a) such a Member would incur disqualification if he voluntarily gives up his membership of such political party.
In paragraph 20 of the judgement in Kihoto, the Supreme Court upheld Para 2(1) as follows:
"We hold…that the Paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended…The Provisions of Paragraph 2 do not violate any rights or freedom under Articles 105 and 194 of the Constitution…The provisions are salutary and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections".
Two years after Kihoto, in 1994 the Para 2(1)(a) was upheld and explained specifically by the Supreme Court in Ravi Naik v Union of India (AIR 1994 SC 1558), saying …the Supreme Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.
Two years after Ravi Naik case, the para 2(1)(a) was again upheld by the Supreme Court in G. Viswanathan Vs. The Hon'ble Speaker, Tamil Nadu Legislative Assembly, Madras & Another, AIR 1996 SC 1060,saying that members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.,
The SC analysed:
'it appears that since the explanation to paragraph 2(1) of the Tenth Schedule provides that an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member, such person so set up as a candidate and elected as a member, shall continue to belong to that party. Even if such a member is thrown out or expelled from the party, for the purposes of the Tenth Schedule he will not cease to be a member of the political party that had set him up as a candidate for the election. He will continue to belong to that political party even if he is treated as `unattached'. The further question is when does a person `voluntarily give up' his membership of such political party, as provided in paragraph 2(1)(a)? The act of voluntarily giving up the membership of the political party may be either express or implied. When a person who has been thrown out or expelled from the party which set him up as a candidate and got elected, joins another (new) party, it will certainly amount to his voluntarily giving up the membership of the political party which had set him up as a candidate for election as such member".
The fact that the Supreme Court has analysed para 2(1)(a) in this case should have been brought to the notice of Rajasthan High Court.
Mere giving up of the membership of party which fielded him also might amount to defiance as a precursor to defect, by breaching the trust and pushing their own party government into difficulties especially when the margin of majority is thin. The resignations reduce strength and stability.
When resignation is a form of defection
Sachin Pilot is not just a dissident legislator, he is leading a rebel group threatening the stability of government, in defiance of the party discipline and verdict of the people. It is enough to attract disqualification, even without defection.
As argued by the Congress leaders, Pilot had chance of exercising his freedom to criticise or show dissidence in CLP meetings which he chose not to attend. Every member is free to air any policy differences, administrative issues, corruption or leadership issues in party or government? Were they doing it? Avoiding the CLP meetings and herding its supporters in a resort is far beyond mere criticism and nearing the desertion of party. The tenth schedule aims at guarantying stability to democratically elected government from defecting groups often called rebels.
There should have been a prima facie inquiry, especially after the audio clips exposing alleged attempts to bribe the legislators to defect. Such incidents strengthen doubts that this group of legislators were trying to pull down the Government with help of the rival party.
The political experience in Karnataka and Madhya Pradesh, where people's verdict was against BJP, stands to prove that Congress Governments are vulnerable. The voter's verdict was subverted in two states because of engineered resignations. Resignation is the new strategy to pull down an elected government.
22 legislators of Jyotiraditya Scindia's group resigned in Madhya Pradesh. A legislator is free to resign for his own individual reasons. It was a mass resignation, an action in group, which is more than expression of dissidence and smacks of defection. Isn't it obvious that their resignation resulted in immediate fall of ruling party's strength which ultimately paved way for installation of BJP government? The developments proved that Scindia's move was clear defection along with that of elected colleague MLAs of Congress party. Being not a member of any legislative house, Jyotiraditya Scindia is free to defect. His right to dissidence is constitutional. But he made 22 legislators to resign and the moment they were accepted by the speaker the strength of Congress was reduced from 114 to 92. In the last few weeks three more Congress MLAs resigned their membership in Legislature and Congress party to join BJP. One of the resigned Congress MLA's, Lodhi was given the chairmanship of Madhya Pradesh State Civil Supplies Corporation within hours of joining the party. There will be by-elections for 24 seats in the Assembly. These Ex-MLAs might contest elections this time on BJP's ticket. This is a clear case of disrespecting the people's verdict with strategic defection.
In Karnataka too the strategy of 'resignations' was used to pull down the coalition government. As the Speaker who belonged to Congress party was scrutinised the 'voluntariness' and 'genuineness' of resignations as per his Constitutional duty was rejected. The resignations were not based on individual reasons, but the strategy of a group who came in chartered flights and luxury buses straight from their five-star hotel resort to the Speaker's chamber and went back. Later they were disqualified for defiance coupled with intention to defect. The Supreme Court agreed with Speaker on disqualification but made the legislators qualified to contest elections contrary to the objective of 91st Amendment to the Constitution. Supreme Court gave a verdict against the letter and objective of that Constitution (91st Amendment) Act. With this legal support, the disqualified MLAs contested elections and most of them have won. It is unfortunate that the defection strategists are using the courts of law as battlegrounds to gain more time for horse-trading. Judiciary is the only resort for democracy, to secure people's verdicts from the conspiracies of rebels through defections and deceptive resignations.
Views are personal only.
(M. Sridhar Acharyulu, Dean, School of Law, Bennett University & former Central Information Commissioner.)