The Rajasthan High Court on Tuesday reserved its decision on a plea filed by state’s Deputy Chief Minister Sachin Pilot and another 18 MLAs till Friday (24 July) and asked the Assembly Speaker not to take any action against them. The HC was hearing a petition filed against the disqualification notice issued by the Speaker to disqualify rebel Congress MLAs.
Appearing for petitioners including Pilot, senior lawyer Mukul Rohatgi argued in the court that the 10th Schedule was enacted in the backdrop of “aya Ram, gaya Ram” phenomenon to curb the evil the practice of crossing over, and the “Kihoto Judgment” had to be understood in that context. He said, “A show-cause notice can be challenged on grounds of defect of jurisdiction, excess of jurisdiction, colourable exercise of power, mala fides, violation of principles of natural justice. I am challenging the show-cause notice on the above said facts. The facts of the complaint, even if assumed to be correct, does not make out a case under Para 2(1)(a) of the 10th Schedule.”
Questioning the Speaker’s role, senior lawyer Harish Salve—also appearing for the disqualified MLAs— had earlier argued that the Speaker made up his mind before hearing the petitioners. “The Kihoto Hollohan judgment regarded defection to be going from party A to party B. Intra-party differences cannot be considered as defection. There is a difference in saying that courts will generally not interfere with the Speaker’s decision and Courts have no supervisory power. Courts can exercise jurisdiction over the decision of the Speaker,” he said.
However, Senior Advocate Devadatt Kamat while appearing for the Congress quoted Parliamentary Committee reports with respect to 10th Schedule, which say that those who wrecked inner-party discipline must pay the price with disqualification.
Earlier, appearing for the Rajasthan Speaker, senior lawyer Abhishek Manu Singhvi had argued that until the Speaker decided on disqualification notices, courts had no jurisdiction. “This petition is based on the show-because notice issued by the Speaker. Unless the Speaker has disqualified you, you cannot approach in the interim.19 MLAs will have different facts. The matters have to be decided by the Speaker on a case to case basis.”
He also defended the Speaker’s role and powers during the entire crisis and added, “Speaker’s exercise of power cannot be interdicted at this juncture. Voluntary giving up of party membership is to be read widely; no need for formal resignation; giving up of membership can be inferred from conduct.”
Non-attendance in a party meeting may or may not amount to voluntary giving up of party membership. That depends on the facts, and the Speaker has to be given the opportunity to decide on that. In any case, in the instant case, the petitioners now have got seven-day time to submit a reply, Singhvi said.