• Saahas Arora

Did the Rajasthan High Court Break Constitutional Precedent?

Update August 11, 2020, 1150hrs : After talks with Mr. Gandhi, Sachin Pilot has agreed to re-enter the Congress fold and end his rebellion. A three-member panel is being constituted with Ms. Priyanka Gandhi Vadra, KC Venugopalan, and Ahmed Patel to address "all concerns" raised by Mr. Pilot.

Update August 10, 2020, 1630hrs : Sachin Pilot is said to have met former Congress Party President Rahul Gandhi and news sources predict a conciliation is on the anvil. Updates will be posted here as the situation evolves. The analysis of the court verdict however, continues to remain relevant.

The current political state of affairs in Rajasthan is at sixes and sevens and is reigning the headlines of every news channel in India. The two political moguls, Chief Minister of Rajasthan Ashok Gehlot and former deputy Chief Minister and President of the Rajasthan Division of Congress, Sachin Pilot, are at loggerheads with each other with a friction so tense, that it could possibly lead to an undemocratic collapse of the Congress government in Rajasthan.

This political altercation had demanded the interference of the Rajasthan High Court and now, the Supreme Court, to judicially analyse the intricacies of the sacrosanct Anti-Defection Law under the Tenth Schedule and clear the air of uncertainty in Rajasthan.

Understanding the Chronology

This internal dispute dates back to 2018 when the Congress won the state elections in Rajasthan. Right after its marginal victory, the Congress was caught between a rock and a hard place as it had to choose between a politically seasoned Ashok Gehlot and the engineer of the revival of Congress in Rajasthan, Sachin Pilot. As history speaks for itself, the Congress decided to choose Gehlot as the Chief Minister with Pilot as his Deputy, which, to a great extent, was perceived to be a perfect cocktail of political experience and ambition. Much to the contrary, this allocation of posts resulted in an internal divide between Gehlot and Pilot that kept snowballing into a discord, which today, has the potential to bring down the Gehlot government.

As recent as July 2020, Gehlot accused the Bhartiya Janta Party of horse-trading and alleged that its officials were offering heavy monetary

amounts to MLAs of the Rajasthan Legislature ahead of the Rajya Sabha polls. Gehlot contended that the BJP was luring the Congress ministers by making undemocratic financial advances towards them and turning the state politics into a “bakra mandi” (goat market). Subsequently, the Special Operations Group of Rajasthan Police (SOG) undertook an investigation and arrested two individuals, Ashok Singh and Bharat Malani, and charged them under Sections 124-A (sedition) and 120B (criminal conspiracy) of the Indian Penal Court after acquiring substantial evidence against them for plotting to topple the Gehlot government.

To clear the defection allegations, Pilot and several other ministers were asked to give their statements. This miffed Pilot who, along with 18 other ministers, left for Haryana, a BJP governed state. In the wake of this political commotion, the unprecedented episode of Pilot meeting the BJP President JP Nadda and switching parties was being heard on the grapevine and consequently kept pricking Gehlot.

Historically analysing the defections of the past six years the most fundamental of them being in Karnataka and Madhya Pradesh, and the BJP’s involvement in most of them, it would have been a blunder on Gehlot’s part to not envisage his ministers switching to the BJP and the Congress government subsequently undergoing a drastic collapse in Rajasthan.

However, the political mayhem cannot solely be attributed to the BJP. The protracted civil war in the Rajasthan government that compelled the two main leaders to burn bridges between them was equally responsible for the current state of political affairs. The BJP was just striking the iron while it was hot.

The successive turn of events was even more appalling. Despite, the Congress issuing a whip to all its legislators, Pilot and his camp of 18 rebellious ministers failed to turn up in the two urgent Congress Legislative Party meetings. Pilot’s presence in the meeting would’ve sealed the lips of every individual who dared question his loyalty towards the party. Failing to show his attendance in the two meetings, Pilot was removed from the post of Deputy Chief Minister of Rajasthan and the President of the Rajasthan wing of Congress. Subsequently, the 18 ministers in Pilot’s rebellious camp were also sacked from their respective ministries. Notices were issued by the Speaker,

C.P. Joshi, to Pilot and the other sacked ministers to cite reasons for their absence from the two urgent meetings that were held amidst the defection allegations and state why shouldn’t they be disqualified under Section 2(1)(a) of the Anti-Defection Law for voluntarily giving up their memberships. Instead of responding to the letter, Pilot and his camp challenged the Speaker’s notice in the Rajasthan High Court. Furthermore, Pilot also challenged the constitutionality of Anti-Defection Law which empowers the Speaker to disqualify an MLA for anti-government activities.

Assessing the High Court Judgement

Pilot’s main contention was that he cannot be disqualified under the Anti-Defection Law as a whip cannot be issued when a State Assembly is not in session and that disqualification cannot be used as a weapon to stifle

inner-party dissents. Even though his argument is valid on logical grounds, it grossly misinterprets the literature of the Section 2(1)(a) Anti-Defection Law and completely overlooks the past judgements of the Supreme Court. First and foremost, Pilot was not yet disqualified from the Assembly when he was issued the notice. The Speaker’s decision on disqualification is final and only after he has taken the decision, can it be subjected to judicial review. Here, the Speaker was yet to arrive at any conclusion regarding the disqualification of Pilot. Secondly, Section 2 (1)(a), which talks about a Member of the House voluntarily giving up the membership of his political party does not merely talk about defying the whip.

As explained in the Ravi S. Naik judgement, the term voluntarily giving up membership has a wide connotation that covers under its ambit the express and implied conduct of the Member to be disqualified. Even in the absence of a formal submission of resignation, an inference can be drawn from the conduct of the Member that he is voluntarily giving up the membership of the party.

As the events had unfolded, Pilot had made it satisfactorily evident from his actions that he had turned over a new leaf and had started walking, though not a pro-BJP path, but definitely an anti-Congress path. This went as far as Pilot coming on record and avowing that he had no intention of being in the BJP’s corner. This statement, however, was tussling for credibility as Pilot’s conduct prior to this declaration begged to differ. From receiving humble hospitality and a muscular guard in a BJP-governed Haryana, to appointing Centre-leaning lawyers like Harish Salve and Mukul Rohatgi to fight his case.

Pilot’s (mis)demeanour was blatantly tainting his assertion and showcasing that there were no two ways about him leaving the Congress. However, much to the relief of Pilot and his camp of dissenters, the Rajasthan High Court directed a status quo be maintained on the notices sent by the Speaker. This order effectively meant that the 19 ministers were under no compulsion to reply to the Speaker’s notices. From here, the political crisis in Rajasthan took a menacing turn as it was now accompanied by a constitutional fallout. Joshi, who received the judgement with great dissatisfaction, approached the Supreme Court to challenge this decision on grounds of being “unconstitutional and in the teeth” of the law laid down in the Kihoto Hollohan case.

In 1992, in the landmark case of Khihoto Hollohan v. Zachilu, the Constitutional Bench of the Supreme Court upheld the constitutional validity of the Anti-Defection Law by a 3:2 majority. Subsequently, the judgement restricted the Courts’ intervening power with respect to legislative proceedings and observed that judicial review is limited to the Speaker’s decision. Getting down to the brass tacks of the High Court decision, it not only goes against the Kihoto ruling but is also in flagrant contravention of Article 212 of the Indian Constitution that barricades the Courts from inquiring into or questioning the proceedings of the Legislature. The impugned order interdicts the Speaker’s power to call for replies from Pilot and his dissenting camp and nips his constitutional domain right in the bud.

Moreover, Governor Kalraj Mishra’s conduct that was ultra vires to his powers raised many eyebrows and added salt to the wound of an already marred political and constitutional state of affairs in Rajasthan. Gehlot was more than willing to call for a session and prove his majority on the floor through the constitutionally ascribed method. However, Mishra caused an objectionable amount of delay by rejecting Gehlot’s request of convening a State Assembly thrice and raising trivial questions relating to Gehlot conducting the trust vote, insisting on the submission of 21-day prior notice to convene the Session, and citing precautionary reasons in the wake of Coronavirus.

By doing this, the Governor overstepped his powers as sanctioned by the Constitution. With respect to the convening of the Assembly session, the Supreme Court in Nebam Rebia had made it crystal clear that the office of the Governor has no discretionary power in the said matter. Not only did the Governor's conduct trespass his Constitutional powers but also collaterally encouraged and incentivised horse-trading. It is pertinent to bring to light that the Supreme Court, in a similar state of affairs in the recent Madhya Pradesh political crisis, had ordered the Speaker to convene the floor test amidst the break of Coronavirus. Kalraj Mishra, thus, was also reprimanded for using the pandemic as an alibi to refrain from convoking the Assembly session.

With the Supreme Court examining the constitutional merits of the Anti-Defection Law, it is needless to say that the Kihoto Hollohan case will form the fulcrum of the arguments to be raised from both the sides. However, as important as it is for the Court to consider what views the majority held, it is equally important for them to consider what deliberations the minority observed in the judgement, which today, form the crux of the issues raised by Pilot.

The Anti-Defection Law indefinitely empowers the Speaker to single-handedly take decisions in cases of defection. However, this notion is completely robbed of the fact that the Speaker, at the end of the day, is a political stalwart who, in all probability, is likely to act in the best interest of his party. Thus, the law empowers a member of the Legislature to decide whether another member of the Legislature deserves to stay in the House or not. It inadvertently makes it hard to expect from the Speaker an unbiased and non-partisan decision in defection cases that would harm the party he belongs to. The same was lamented in the Kihoto Hollohan case where it was observed-

“The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein, likelihood of suspicion of bias could not be ruled out. The question as to disqualification of a member has adjudicatory disposition and, therefore, requires the decision to be rendered in consonance with the scheme for adjudication of disputes”

Moreover, Section 2 (1)(b) gives unbridled power to the political parties to police the voting of the parliamentarians while at the same time threatens those Members who abstain from voting with disqualification. This, consequently, stifles free speech by considering intra-party dissents on policies and working mechanisms as grounds of disqualification. It is unfair for the individual Members to readily conform to every order of the party that brought him to power or otherwise, bear the wrath of disqualification upon disagreement. The same was strongly pointed out by Pilot.

With many loopholes clouding the law, it is pertinent for the Court to fill in the gaps. The Anti-Defection Law was inserted by the 52nd Amendment, 1985, to effectively deal with turncoats like in the Aya Ram-Gaya Ram complication and prohibit legislators from crossing the floor according to their whims and fancies. It was also enacted with the objective of keeping a vigilant check on the political parties who lure ministers by offering them ministerial perks, financial benefits, and greener pastures. The Supreme Court, which has now taken over the case, needs to strategically cudgel its brain to give a verdict that stabilises the political situation in Rajasthan and at the same time, amend the Anti-Defection Law in such a manner that it prevents the spirit of the Constitution from falling by the wayside.

Views expressed are solely those of the author. The post has been updated to reflect current happenings.

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About the Author

Saahas Arora is currently reading law at the ILS Law College, Pune. He has been enthusiastic about writing and debating which he pursued with a Debating and Public Speaking course from the University of Oxford in 2016. As a budding lawyer, he takes a keen interest in Constitutional Law, Criminal Law, and women’s rights. Gathering experiences from working under the Indian National Bar Association, LexLife, and the Central Law Agency, he likes analysing and decoding government policies and diplomatic affairs and has been dissecting several socio-legal issues through his writing. At leisure, you would find him indulging in reading, food, and FIFA.

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