Sachin Pilot, disqualification and the Tenth Schedule: An explainer
The Speaker’s notice asked the 19 MLAs to furnish an explanation by Friday on why they should not be disqualified from the assembly for their conduct that allegedly showed their intention to quit the Congress party.Updated: Jul 16, 2020 18:11 IST
Sachin Pilot and 18 dissident Congress MLAs moved the Rajasthan high court on Wednesday challenging the disqualification notice issued to them by the Speaker of Rajasthan assembly, CP Joshi on July 14.
The ruling Congress has sought their disqualification from the assembly for ‘anti-party activities’.
The Speaker’s notice asked the 19 MLAs to furnish an explanation by Friday on why they should not be disqualified from the assembly for their conduct which the Congress party alleged was detrimental to the interest of the party and showed their intention to quit the party.
What is the basis for Speaker’s notice?
The Speaker’s notice was based on the disqualification petition filed by Chief Whip of Congress Party, Mahesh Joshi.
Joshi in his plea had cited the absence of the MLAs from two Congress Legislature Party meetings, held on July 13 and 14, despite specific instructions to attend the same as the main reason which showed the intention of the MLAs to leave the Congress party.
Joshi also cited statements made by the MLAs to the press, their prolonged absence and their allegedly hostile and prejudicial conduct in open against Congress party as grounds that they intended to leave the party.
What are the grounds on which lawmakers can be disqualified for defection?
The Tenth Schedule of the Constitution of India contains provisions relating to disqualification of lawmakers for defection. It provides two grounds to disqualify a lawmaker for defection.
First, voluntarily giving up membership of the political party on whose ticket the lawmaker was elected [para 2(1)(a)].
Second, voting or abstaining from voting in the house contrary to the directions issued by the party, that is violating the party whip in the house [para 2 (1)(b)].
Pilot and other MLAs were served notice for disqualification on the first ground, that is, voluntarily giving up membership of the party.
What does “voluntarily give up membership” mean?
The Supreme Court had the occasion to deal with the interpretation of these words used in the Tenth Schedule in the 1994 case of Ravi S Naik v. Union of India.
In that case, the court held that the words “voluntarily give up membership” are not synonymous with “resignation” and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs, the court had held.
Congress chief whip Mahesh Joshi had also cited the Ravi Naik case in his disqualification petition filed before the Speaker.
There have been more such judgments since then on this point including Rajendra Singh Rana v. Swami Prasad Maurya and Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Assembly which held that express resignation is not required to prove that a lawmaker has given up the membership of the party and the same can be inferred from the conduct.
Can the Speaker’s powers to decide on disqualification be interfered with?
The Speaker of the house enjoys vast powers when it comes to deciding on disqualification of members of the house.
The Supreme Court has consistently held that it will not interfere in disqualification matters till the Speaker actually makes a decision. In other words, once the Speaker makes a decision, the court can judicially review the correctness of the same but it cannot interfere before that.
One of the first cases in which this was laid down was in the 1992 judgment in Kihoto Hollohan vs Zachillhu.
In that case, the top court ruled that having regard to the constitutional scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairman. No interference would be permissible at an interlocutory stage of the proceedings, the court said.
“Exceptions will, however, have to be made in respect of cases where disqualification of suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence”, the court had added.
Recent case of interference with the Speaker’s exercise of powers
One aspect of the Speaker’s power to decide the disqualification petitions is that no time limit is prescribed for making such a decision. So when a disqualification petition is filed by an opposition MLA, the Speaker often defers his decision for an inexplicably long period so as to enable the government to continue in office.
In two such recent instances, courts – Supreme Court and Manipur high court - were forced to interfere due to the Speaker’s delay in deciding the case.
One is the famous case of Manipur Bharatiya Janata Party (BJP) minister Thounaojam Shyamkumar who had contested the 2017 elections to the Manipur Assembly on a Congress ticket and, subsequently, joined hands with the BJP after the election results, and was made a minister in the Biren Singh-led BJP government.
Congress leaders filed disqualification petitions before the Speaker Y Khemchand Singh to seek Shyamkumar’s disqualification on the ground of defection but the Speaker did not take a decision for a very long period. The petitioners then moved Manipur high court which declined relief. An appeal was filed before the Supreme Court which was critical of the undue delay by the Speaker in arriving at a decision. The top court, in a judgment rendered on January 21, asked the Speaker to take a decision on the disqualification petitions within a month.
When the Speaker again refused to take a decision as per the court’s order, the Supreme Court resorted to an unprecedented step. In a strongly worded order, the top court restrained Shyamkumar from entering the Manipur Legislative Assembly and also ordered that he shall cease to be a cabinet minister in the state with immediate effect. The Speaker later disqualified Shyamkumar in March.
Close on the heels of this, the Manipur high court in June ordered that 7 former Congress MLAs, who had defected to the BJP along with Shyamkumar in 2017 elections, cannot enter the state legislative assembly till the disqualification petitions filed against them are decided by the Speaker.
But both these were instances of court’s interference when the Speaker failed to decide the disqualification petitions filed by opposition MLAs, on time – a scenario which is unlikely in this case where the ruling party whip has filed the plea.
Important grounds raised by Pilot and other MLAs
- Pilot and other MLAs had contended that Speaker’s notice is based on assumptions and surmises and there is no factual basis to support the apprehensions raised by him in the notice.
- None of the MLAs have either by their express or implied conduct indicated their intention to give up Congress party membership.
- In a democratic setup, voicing disagreement with the policies or decisions taken by the party does not amount to acting against the interests of the party.
- Not attending two Legislature Party meetings will not fall within the scope of defection contemplated in para 2 of the Tenth Schedule.
- Rajasthan Assembly (Disqualification) Rules mandate that the Speaker should give 7 days’ notice to a member to explain his stance in a disqualification case. The notice issued by the Speaker on July 14 has set a deadline of July 17 to show cause and is, therefore, violative of the rules.
- If somebody is expelled from a political party, such a person cannot be said to have voluntarily given up membership as required under para 2 of Tenth Schedule to attract disqualification for defection. This issue is not yet completely settled and is pending before the Supreme Court in the case of Amar Singh v. Union of India.