E-Paper
Rajasthan HC defers order in Pilot vs Gehlot case: Issue and implications
HC ordered the Speaker to maintain status quo effectively barring him from acting on the notice of disqualification.
The Rajasthan high court (HC) on Friday deferred its final verdict on the plea filed by 19 rebel Congress lawmakers, including sacked deputy chief minister Sachin Pilot challenging the assembly Speaker CP Joshi’s disqualification notice.
It admitted the case and framed 12 legal questions that it will examine. Since the matter has been admitted, it is unlikely to come up for hearing for long.
HC ordered the Speaker to maintain status quo effectively barring him from acting on the notice of disqualification.
What are the implications of the HC order?
1. Speaker Joshi cannot decide disqualification plea against Pilot and other members of the Rajasthan legislative assembly (MLAs) for the time being.
2. When can the Speaker act?
If the Supreme Court (SC) stays the HC order, then the Speaker can act. The SC is slated to take up the matter for hearing on Monday on the larger legal question of HC’s jurisdiction to interfere with a Speaker’s proceedings. If the SC on Monday stays the HC order, then he can proceed with the disqualification proceedings.
But such relief is unlikely because the SC had declined stay, when the matter was heard on Thursday.
If the SC does not stay the HC order, then the Speaker cannot act until the HC pronounces its verdict one way or the other.
This will take a while since the HC has admitted the matter for a hearing, which means the case will draft on for long.
3. What are the issues that the SC is examining?
The SC is deciding the limited legal question of whether an HC can interfere with the disqualification proceedings initiated by the Speaker before he gives his decision on the disqualification plea.
The SC in its 1992 judgment in Kihoto Hollohan v. Zachillu had held that 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 SC bench, which is currently hearing the case, thinks that the five-judge bench judgment needs re-consideration, then it might have to send the matter to a larger bench of seven judges.
In that scenario, the SC verdict will also take long.
4. What are the issues HC is hearing?
HC will examine the Constitutional validity of clause 2(1)(a) of the Tenth Schedule. The 10th Schedule of the Constitution of India contains provisions relating to disqualification of lawmakers for defection. Clause 2(1)(a) lays down that voluntarily giving up membership of the political party on whose ticket the lawmaker was elected.
The Pilot camp has contended that 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 freedom of speech under Article 19 of the Constitution.
Besides, HC will also decide the validity of the Speaker’s notice issued on July 14.
HC will frame 12 issues which it will consider.
5. Has HC said it will wait for SC order?
HC has not expressly mentioned in its Friday order that it would wait for the SC order before it hears the case again.
But since the case has been admitted by HC, it is not likely to come up for hearing for long.
The SC has clarified that the HC judgement would be subject to the outcome of the proceedings before it. As a result, HC might not take up the matter again until the SC settles the legal question.
6. What other legal option does the Speaker has now?
The options are limited. Speaker Joshi can challenge the Friday’s order before the SC by way of a fresh appeal. But since Joshi had already challenged the July 21 order of HC, which had also postponed his action, the subject matter of both the 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 and might not yield any desired result.
The matter in all likelihood would be rendered infructuous as far as Joshi is concerned.
7. What are the key takeaways?
Advantage Pilot as far as the legal battle is concerned. The HC order of status quo on Speaker will mean that Joshi cannot disqualify the rebel MLAs for the time being. Rajasthan CM Ashok Gehlot has to ensure that his 101 MLAs remain with him.
The full strength of the 200-member Rajasthan assembly will vote in the event of a no-confidence motion. At present, Gehlot has a wafer-thin majority if all the members in the assembly votes, a change in the stance of one or two MLAs can bring down the government.
But if either, the HC or the SC had allowed the Speaker to act on the disqualification plea, Joshi might have proceeded with the disqualification of 19 MLAs. This would have brought down the strength of the assembly to 181 making it easier for Gehlot to secure a victory in the event of a floor test.
