Appearing on behalf of Sachin Pilot and dissident Congress legislators, counsel Mukul Rohatgi questioned the intent of the disqualification notice served by the party and argued that sufficient time was not provided for the legislators to respond. "According to the rules, more than seven days can be provided for the response. Only three days were provided in this case," he said, adding that the speaker's decision was a foregone conclusion. Also, the Tenth Schedule of the Constitution, which was invoked for the disqualification, has nothing to do with intra-party dissent, he said.
Speaking on behalf of the Rajasthan Congress government, who served the disqualification notices, counsel Abhishek Manu Singhvi had argued that courts cannot interfere with the assembly proceedings and that the speaker's decision to initiate disqualification proceedings are not amenable to a judicial review.
Sachin Pilot and 18 other dissident MLAs had challenged the Congress move to disqualify them from the state assembly. The Congress had moved for action against Pilot and the other dissidents under paragraph 2(1)(a) of the Tenth Schedule of the Constitution. The provision disqualifies MLAs if they voluntarily gave up the membership of the party which they represented in the house. The party claimed that the dissident MLAs' actions leads to this inference. According to the Congress, the MLAs defied a whip in not attending the party's legislature party meetings held on Monday and Tuesday. However, the Pilot camp claimed they have never indicated any intention to leave the party, and claimed the whip to attend the legislature party meet was not official since it comes a time when the state legislature is not in session.
The dissident MLAs' petition had challenged the constitutional validity of the notices. In the writ petition, the MLAs said that they continue to owe allegiance to the Congress and are not seeking to defect to any other party. But, the petition made clear that they opposed the manner in which Gehlot functioned. They claimed that the speaker acted hastily in sending them the notices. "The undue haste and swiftness exhibited by the authority concerned in taking cognisance of the said complaint leaves no doubt in the minds of the petitioners that the move is aimed at arriving at a foregone conclusion leading to the disqualification of the petitioners," it added.
Arguments in court
Singhvi, arguing for the Congress, said there is no straitjacket approach for speaker to decide. "There is no fixed formula. So how to take a decision is within the speaker's domain. Non-attendance in party meeting may or may not amount to voluntary giving up of party membership. That depends on the facts, and speaker has to be given the opportunity to decide on that," he argued.
Appearing for the rebel Congress MLAs, counsel Harish Salve said party whip applies to legislators only when the assembly is in session. He said the whip is not applicable on meetings held “at homes and in hotels”. He noted that the party whip would apply to MLAs only with regard to proceedings in the house. Salve said intra-party disputes cannot be a ground for starting disqualification proceedings. If a complaint of this nature is entertained, it is per se illegal, Salve said, referring to the Congress's complaint to the speaker based on which the disqualification notices were served.
He said the speaker should have applied his mind before sending the notices as it amounts to violation of the right to freedom of speech. Salve also spoke about what constitutes a whip. He argued that it does not apply to party meetings. A whip, he said, is meant to ensure maximum number of legislators belonging to a party, vote in accordance with the party's stand.
Salve argued that the protests by the MLAs against the “dictatorial” style of functioning of Chief Minister Ashok Gehlot cannot be seen as defection as they are only exercising their right to freedom of speech. He said it was an internal matter of the party and that the disqualification notice served by the speaker was an attempt to stifle their freedom of speech.
The choice of Salve and Rohatgi as lawyers for the petitioners and Singhvi for the Congress has given rise to the view that the case is not merely a Congress vs Congress legal tussle, but one in which the BJP's imprint is discernible. Pilot is learnt to have approached Singhvi for legal counsel, but the lawyer had already been signed up by the respondents.
