HC keeps status quo: Decoding the decision
The Rajasthan high court on Friday deferred its final verdict on the plea filed by Sachin Pilot and 18 other rebel Congress lawmakers challenging the state assembly speaker CP Joshi’s notices of disqualification sent to them. It admitted the case and framed 12 legal questions, which it will examine. Importantly, the high court ordered Joshi to maintain the status quo, effectively barring him from acting on the notices.
What are the implications of the order?
The speaker cannot decide on disqualification notices against Pilot and the other lawmakers for the time being.
When can the speaker act?
If the Supreme Court stays the high court order, the speaker can act. The Supreme Court is slated to take up the matter for hearing on Monday on the larger legal question of the high court’s jurisdiction to interfere with the speaker’s proceedings.
If the Supreme Court stays the high court order, then the speaker can proceed with the disqualification proceedings. But such relief is unlikely because the Supreme Court declined the stay it when the matter was heard on Thursday.
If the Supreme Court does not stay the matter, then the speaker cannot act until the high court pronounces its verdict one way or the other. This will take a while since the high court has admitted the matter for the hearing, which means the case is fit for a very lengthy proceedings and is likely to come up only after some time.
What are the issues the Supreme Court is examining?
It is examining the limited legal question: whether a high court can interfere with the disqualification proceedings initiated before the speaker decides on them. The Supreme Court, in its 1992 judgment in the Kihoto Hollohan v. Zachillu case, had held that judicial review should not cover any stage prior to the making of a decision by the speaker/chairman. No interference would be permissible at an interlocutory stage of the proceedings, the court had said. The court is proposing to re-examine this legal principle.
If the three-judge Supreme Court bench, which is currently hearing the case, thinks that a five-judge bench judgment needs re-consideration, then it might have to send the matter to a larger bench of seven judges. This means the Supreme Court verdict will take a long time.
What are the issues the high court is hearing?
The high court will examine the Constitutional validity of clause 2(1)(a) of the Constitution’s Tenth Schedule that contains provisions related to the disqualification of lawmakers for defection. Clause 2(1)(a) is about voluntarily giving up membership of a political party on whose ticket a lawmaker is elected on.
The Pilot camp has contended that merely voicing opinion against party leadership does not amount to “voluntarily giving up membership” and clause 2(1)(a), to the extent it prohibits the expression of opinion, violates the basic structure of the Constitution and the freedom of speech under Article 19. The high court will also decide the validity of the speaker’s notices issued on July 14. In deciding these questions, it has framed 12 issues that it will consider.
Has the high court said that it will wait for Supreme Court order?
It has not expressly mentioned it in its Friday order that it will wait for the Supreme Court order before it hears the case again. But since the case has been admitted by the high court, it is not likely to come up for hearing immediately. Moreover, the Supreme Court has clarified the high court judgment will be subject to the outcome of the proceedings in the apex court. This means the high court might not take up the matter again until the Supreme Court settles the legal question.
What other legal option does the speaker have now?
The options are limited. The speaker can challenge Friday’s order before the Supreme Court by way of a fresh appeal. But since the speaker earlier challenged the July 21 high court order, which had also deferred his action, the subject matter of both appeals will be the same. In such a scenario, the new appeal is also likely to be tagged along with the pending appeal and heard together which means it might not yield any desired result. Therefore, the matter in all likelihood would be rendered infructuous for the speaker.
It is advantage Pilot camp. The high court order of status quo means the speaker cannot disqualify the rebel lawmakers for now. Chief Minister Ashok Gehlot will, therefore, have to ensure his 101 MLAs remain with him. This is because the full strength of the Rajasthan assembly—200—will vote in the event of a trust vote. Gehlot currently has a wafer-thin majority. If all the members vote, a change in the stance of one or two MLAs can bring down the government. Had either the high court or the Supreme Court allowed action on the disqualification pleas, the speaker might have proceeded with the disqualifications. This would have brought down the assembly strength to 181 and made it easier for Gehlot to secure a victory in the floor test.