The Supreme Court on Thursday issued a surprising order in the case related to the disqualification proceedings initiated against 19 MLAs of the Congress in Rajasthan.
In its order, the Supreme Court refused to interfere with the Rajasthan High Court’s decision to issue necessary orders in the case on Friday. However, the Supreme Court said that the High Court’s decision would be subject to the proceedings before the Supreme Court in a petition moved by the Rajasthan speaker on Wednesday.
The Supreme Court said:
“The case requires prolonged hearing so as to decide the question of jurisdiction. However, prayer is made that the High Court should not pass an order on which it has heard the matter and reserved the order.
As the High Court has already heard the matter after prolonged arguments and reserved the order, we are not staying the passing of the order, however, whatever order is passed shall be ultimately subject to the outcome of this petition.”
The controversy is a consequence of the political tug-of-war in Rajasthan’s Congress government between Rajasthan Chief Minister Ashok Gehlot and Sachin Pilot, who was deputy chief minister until he and the 18 others staged a revolt earlier this month. On July 16, Rajasthan Assembly Speaker CP Joshi issued show cause notices to Pilot and the other Congress rebels asking why they should not be disqualified for “anti-party activities”.
The MLAs approached the Rajasthan High Court and challenged the validity of paragraph 2(1) (a) of the Tenth Schedule to the Indian Constitution, otherwise known as the anti-defection law, which deals with MLAs voluntarily giving up membership. On July 21, the High Court requested the speaker to extend the time given to the MLAs to respond to his notices till Friday, when it is expected to deliver its ruling in the case.
The matter that came up before the Supreme Court on Thursday was a special leave petition moved by the Rajasthan speaker against the interim order of the High Court on July 21.
The speaker had argued before the Supreme Court that an order stopping him from carrying out the disqualification proceedings violated a Constitution bench judgement of the Supreme Court delivered in 1992. The Suprt Court had held that a speaker cannot be given directions by the court before the disqualification process was finished.
The Supreme Court order raises several questions over the fate of the proceedings before the High Court and the disqualification proceedings before the speaker of the Assembly.
Supreme Court directions
During the proceedings on Thursday, Justice Arun Mishra observed that voices of dissent cannot be suppressed in a democracy. He said this in reply to lawyer Kapil Sibal’s argument that anti-party comments and refusing to participate in party meetings were valid grounds to initiate disqualification proceedings against the 19 rebels. He contended that such behaviour amounted to voluntarily giving party membership as defined under the anti-defection law.
Citing the 1992 Constitution bench judgement, Sibal, who represented the Rajasthan speaker, said the High Court’s decision to ask the speaker to extend the time given to the MLAs to respond to show cause notices till it delivered its ruling was a quia timet action, that is an injunction to halt a particular act. This, he said, was a violation of Supreme Court precedent, as it was for all purposes an interim stay on the disqualification process itself.
The court did not accept the request for a stay and allowed the High Court to pass its verdict, which would be subject to the outcome of the proceedings before the Supreme Court.
However, what would be the effect of such an order remains uncertain.
First, the matter before the Supreme Court was a challenge to the interim order of the High Court, directing the speaker to extend the time given to the MLAs to reply to his notice. The petition did not ask for a stay on the High Court’s test of the constitutional validity of the anti-defection provision.
Second, given that the jurisdiction of the High Court to pass such an interim order was questioned, it was expected of the Supreme Court to decide on this question before the High Court could pass the order on July 24. Otherwise, the petition against the interim order could become irrelevant: by the time the Supreme Court hears the matter again on July 27, the High Court would have already passed its verdict.
It is probably to ensure the petition does not become irrelevant that the Supreme Court seems to have made the High Court verdict subject to the proceedings before it. But this has another effect.
Crucial questions
Not only did the 19 MLAs challenge the notices issued by the speaker, they had also challenged the constitutionality of 2(1)(a) of the anti-defection law before the High Court. This raises the question of whether only those elements of the High Court proceedings with regards its jurisdiction to order the speaker are subject to the Supreme Court proceedings or if the entire judgement, including possible pronouncement on the constitutionality of the anti-defection provision, is subject to it.
Usually, when a High Court passes a judgement, the parties challenging the verdict have to approach the Supreme Court through the appeal process. But given the Supreme Court order on Thursday, it seems the speaker’s application against the High Court’s interim orders may become an indirect appeal proceeding against the final judgement itself, assuming that the Friday ruling would not be another interim order. This is because if the Supreme Court rules that the High Court had no jurisdiction to admit the challenge to the notices, a significant part of the High Court proceedings could become nullified.
The final element to the Supreme Court order is what happens to the speaker’s powers to proceed with the disqualification proceedings in case the High Court allows it on Friday. Would the speaker be forced to halt the proceedings and wait for the Supreme Court to adjudicate on July 27 or would such a High Court order empower him to go ahead immediately?
Also relevant is the fact that the 1992 apex court judgement that upheld the anti-defection law, including 2(1)(a), was a Constitution bench verdict. But the one that heard the speaker’s application on Thursday was a three-judge bench. Any change to the 1992 judgement can only be made through a reference to a larger bench.