In relief for Congress rebel legislators including Sachin Pilot, the Rajasthan High Court on Friday ordered 'status quo' in the disqualification order issued by Speaker C.P. Joshi. This means the disqualification procedure is essentially put on hold. Heeding a Pilot request, the court had made the Centre a party to the case, to seek its views on whether the anti-defection law holds in this case.
Pilot's move to implead the Centre is largely seen as a move to delay the verdict. This could pile pressure on Rajasthan Chief Minister Ashok Gehlot, who is holed up with his legislators at Jaipur. The more the disqualification process is delayed, the more chances are that the rebel MLAs could vote against the Congress if a trust vote happens in the assembly, and the more chances that more Congress MLAs could switch sides.
The development comes on the back of Supreme Court, on Thursday, refusing to restrain the Rajasthan High Court from passing the order, and stating it would be subject to the outcome of petition before the apex court. Observing that "voice of dissent in a democracy cannot be shut down", the apex court refused to accept the request of Rajasthan speaker Joshi to either stay the matter pending before the high court or transfer it to the apex court. A bench headed by Justice Arun Mishra was hearing an appeal filed by Joshi against the high court's direction asking him to defer the disqualification proceedings till July 24.
The rebel Congress MLAs were served disqualification notices, following a Congress complaint that the 19 MLAs defied a party whip. The dissident MLAs, including Pilot, had challenged the disqualification notices, moving court last Friday. The division bench of Chief Justice Indrajit Mahanty and Prakash Gupta also heard the case on Monday and Tuesday. The Congress had moved for action against Pilot and the other dissidents under paragraph 2(1)(a) of the Tenth Schedule of the Constitution.
Arguments in court
Representing Joshi in the Supreme Court, senior counsel Kapil Sibal quoted the 1992 Kihoto Hollohan judgment, saying the SC had upheld the sweeping discretion available to the speaker for deciding disqualification cases. Sibal said that the speaker's decision on disqualification, at this stage, cannot be subject to judicial review. “Judicial review is not permissible at a stage prior to the making of a decision by the speaker."
Singhvi, arguing for the Congress in the Rajasthan HC, 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.
We have numbers, says Gehlot
Meanwhile, Rajasthan Chief Minister Ashok Gehlot sought to assuage concerns that his government would fall if the MLAs were not disqualified. He said his government will soon prove its majority in the assembly, hours before he met the governor with whom he is said to have discussed calling a session of the House.
The Congress in Rajasthan currently has 107 MLAs in the 200-member assembly, after six BSP legislators crossed over into the Congress fold. Subtract the 19 legislators and the ruling party would have a strength of 88. The BJP, on its part, has 72 MLAs and is supported by 3 MLAs from the Rashtriya Loktantrik Party, which takes its tally to 75. Most importantly, there are 13 independents who can tilt any trust vote the assembly, and five legislators from the Bharatiya Tribal Party (BTP), the CPI(M) and the Rashtriya Lok Dal (RLD).
"The assembly session will take place soon. The majority is with us, all Congress MLAs are united," Gehlot told reporters. He hoped that some of the dissident MLAs, who are led by sacked deputy chief minister Sachin Pilot, will also attend the session when it is called very soon. "Without them too, we have a complete majority and will go to the House on the basis of this majority, and we will prove it," he said.
About three hours after this interaction with the media, Gehlot met Governor Kalraj Mishra at the Raj Bhawan. According to reports, the two discussed the possibility of calling a session of the Vidhan Sabha.
