When I first read the order of the Rajasthan High Court in Prithivraj Meena and Others v The Hon'ble Speaker – the latest battle in the infamous Pilot-Gehlot war – I thought there were a few pages missing. The order first reproduces verbatim all the grounds raised by the dissenting MLAs in their petition. Then, it proceeds to record the submissions of each of the counsel on either side in some detail. After engaging in this painstaking exercise, the order suddenly turns sketchy. Without dealing with the submissions, without providing any reasoning and without even dealing with preliminary objections on maintainability, the Court proceeds to frame 13 questions to be answered. [The last of the questions ironically relates to the maintainability of the petition.] Immediately below that, without any considering the now well-settled trifecta of prima facie case, balance of convenience and irreparable hardship, the court passes an interim direction to the Speaker to maintain status quo.
High Courts have repeatedly chastised lower courts and even quasi-judicial authorities to apply these three tests before granting an interim order. Hence, it is shocking that a Division Bench of the High Court would pass an interim order in any kind of matter in such a callous manner, much less a matter involving the fate of the Government of one of India's largest states.
Let us now come to the merits themselves. The petitioners' arguments were on two planes – first, they attacked the constitutional validity of paragraph 2(1)(a) of the Tenth Schedule of the Constitution since it could attack intra-party dissent, and second, they argued that the Speaker had no right to issue the disqualification notice since the Petitioners had not left the Congress party, but had only exercised intra-party dissent.
Validity of Paragraph 2(1)(a) of the Tenth Schedule
The petitioners argued that while the Constitution Bench of the Supreme Court in Kihoto Hollohan v Zachillu 1992 (2) Supp SCC 651dealt with "crossing the floor", which the Petitioner has interpreted to mean acts within the House, it did not deal with intra-party disputes where the dissidents had no intention of leaving the party. In that sense, the two attacks of the Petitioner – to the Tenth Schedule, and to the Speaker's notice – are intertwined. The Petitioner's ground (R) is an express submission to this effect, and the High Court, in question (ii) framed by it, recognises this fact:
"(ii) 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?"
Now, a provision of law can never be constitutionally invalid "in the facts and circumstances" of a case. It is either valid or not. The framing of this question itself suggests that the Court is tiptoeing around Kihoto Hollohan. If a factual finding is involved, it is no longer a determination of the validity of the provision, it becomes a question of interpretation of the provision. The question then becomes, "Do these facts fall within the mischief of this provision?"
That apart, the validity of Paragraph 2(1)(a) on these very same grounds had been dealt with in Kihoto Hollohan. Paragraph 24 of Kihoto Hollohan mentions the various issues that arise for consideration. Issue (A) is whether the Tenth Schedule violates the legislator's "right to dissent" and "freedom of conscience".
The final reasoning in paragraph 49 of Kihoto Hollohan, after considering various authorities, deals with "defection" in general terms – not only defection within the House. It is also submitted that from a reading of the reasoning in Kihoto Hollohan, it is clear that "floor-crossing" was not used in the judgment to only mean acts within the House. In any case, the validity of paragraph 2 of the Tenth Schedule in its entirety was upheld in no uncertain terms. Paragraph 53 of the judgment starts with the words: "[T]hat the Paragraph 2 of the Tenth Schedule of the Constitution is valid."
In light of this specific observation, could the High Court have even admitted a question on the constitutional validity of Paragraph 2(1)(a)? And if it did interpret Kihoto Hollohan to have only dealt with acts within the House, or not having dealt with intra-party disputes, shouldn't the High Court have at least done so in a reasoned order? In other words, can the High Court refuse to apply the plain meaning of a judgment of the Constitution Bench of the Supreme Court without even stating why it had done so?
Validity of the Speaker's Notice
The validity of the Speaker's notice has been challenged primarily on factual grounds. The Speaker, the Petitioners argue, could not have issued the notice for disqualification based on the complaint of the Whip, because they had not given up their membership of the Congress party. They argue that merely not attending two meetings will not amount to giving up of membership. There are also arguments that intra-party dissent cannot amount to defection.
The Respondents' reply to this is that the Speaker has not made any finding that there is defection – he has only issued a show cause notice to this effect. The Respondents argued that at the stage of the show cause notice, the enquiry is limited to whether the Speaker had no jurisdiction to issue the notice at all, and not on the merits of the notice itself. The Respondents also pointed out numerous judgments of the Supreme Court where the Court had upheld disqualifications based on activities outside of the House. Most importantly, they relied on an observation of the Supreme Court in Kihoto Hollohan that barred the writ petition:
"However, having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairman. Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence." [emphasis added]
Again, the Court, in admitting the petition and granting an interim order, violated this unambiguous law laid down by the Supreme Court. It is neither the case of the petitioners nor the Court that there is an 'interlocutory disqualification' of these members. The Court does not even, for the sake of formality, record a finding that there are "grave, immediate and irreversible repercussions and consequence". As stated repeatedly, the Court's order reveals no reasoning for anything whatsoever.
The Court has not granted a time-bound interim order, it has not laid down a timeline in which the pleadings are to be completed, and it has not even set a next date of hearing. In a matter with such grave implications for the governance of a state in the middle of a pandemic, this is shocking and unacceptable.
The High Court has, contrary to a Constitution Bench judgment of the Supreme Court, granted an unreasoned interim order restraining a constitutional authority from performing a constitutional function. This strikes at the root of democracy. The law of precedent is the bedrock of our legal system. It enforces judicial discipline and promotes certainty in the law so that all persons and authorities may act within the confines of the law. We all know that law declared by the Supreme Court is binding on all Courts of the land under Article 141 of the Constitution. If High Courts fail to apply such clear law, it will lead to chaos and a loss of faith in the judiciary itself. If the High Court believed that the facts of this case were not covered by the judgment in Kihoto Hollohan (and it is hard to see how the High Court could have reasonably held such a belief), the least it could have done is provided reasoning for its conclusions.
(Swaroop Mami is an advocate practising in the Madras High Court. He may be reached at firstname.lastname@example.org)