The Rajasthan High Court on Friday framed 13 questions that could change the very nature of the anti-defection law that aims to curb unethical movements of legislators from one party to another.

In response to a case filed by 19 rebel Congress MLAs, the court reopened the question of whether paragraph 2 of the Tenth Schedule of the Constitution, otherwise known as the anti-defection law, is valid. The passage deals with MLAs voluntarily giving up membership.

The rebels had challenged paragraph 2(1) (a) of the Schedule after Speaker CP Joshi moved to disqualify them on July 14 following their failure to attend two meetings of the Congress Legislative Party. They said that the speaker was stifling their voices. The rebels say that they do not want to leave the Congress but are only seeking a leadership change.

They are led by Sachin Pilot, who was deputy chief minister until he was removed from the position on July 14 after the revolt.

Though a five-judge Constitution bench of the Supreme Court had in 1992 said that paragraph 2 does not violate “freedom of speech, freedom of vote and conscience”, the Rajasthan High Court on Friday framed 13 questions that it said emanated from the MLAs challenge.

The first of the questions goes to the very heart of the Supreme Court Constitution bench declaration.

In Kihoto Hollohan vs Zachillhu & Others, the Supreme Court had said:

“...the Paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended.

The Provisions of Paragraph 2 do not violate any rights or freedom under Articles 105 and 194 of the
Constitution.The provisions are salutory and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections...”

But on Friday, the High Court asked whether the Supreme Court had dealt only with the question of “defection” or “crossing over” to another party by legislators and not about intra-party dissent. The court declared that three of the five prayers in the petitions filed by the 19 MLAs were maintainable and ordered the status quo to be maintained on the show-cause notices issued by the speaker on July 14.

By doing so, the High Court has gone against several Supreme Court judgements upholding the application of 2(1)(a) of the anti-defection law in cases involving similar political developments.

This raises an important question: with its order on Friday, has the Rajasthan High Court committed an act of judicial indiscipline?

Violating Supreme Court precedent

As it declared the petitions of the 19 MLAs legally sustainable, the Rajasthan High Court order seems to have made extraordinary leaps.

First and foremost is the question of whether it is in the High Court’s jurisdiction to order the speaker to halt his action in the disqualification notices. On Tuesday, the High Court ruling asking the speaker to provide more time for the MLAs to reply to the notices led the speaker to move an application before the Supreme Court pleading for it to stay the High Court order.

By directing the status quo to be maintained on Friday, that too without setting a clear date for the next hearing, the Rajasthan High Court is repeating a violation that has already been alleged by the speaker. The speaker said that the High Court’s action contravened the Supreme Court judgement of 1992 that the court cannot issue a direction to the speaker before the disqualification process is complete.

Rajasthan speaker CP Joshi. Credit: PTI

Secondly, if the position of law according to the 1992 judgement is that the speaker cannot be given directions before the process is complete, the principle would apply to analysing the constitutionality of the action as well. That is, the High Court can only look into the validity of the speaker’s actions after the disqualification process is complete. But in this instance, instead of asking the rebels to come back after the disqualification process is completed, the High Court has asked the speaker to halt his action.

Question 13 posed by the High Court order asks whether the 1992 Supreme Court judgement bars it from framing such questions. By doing this, the High Court is working in reverse. Should the court frame the questions and then ask whether it has the power to do so? Shouldn’t this framing happen after it has ascertained whether it has the jurisdiction to frame such questions in the first place?

Previous cases

Further, the High Court seems to have missed the fact that since 1992, the Supreme Court has heard a number of cases with similar facts and circumstances pertaining to 2(1)(a) of the Tenth Schedule. In these cases, it has upheld the powers of the speaker to disqualify those acting against the party in the manner that Sachin Pilot and the other 18 Rajasthan Congress MLAs have done. Recent cases include those in Karnataka and Tamil Nadu.

In none of these cases did the Supreme Court find it necessary to ask if the breadth of 2(1)(a) included intra-party dissent. For example, in the Karnataka Congress MLAs judgement delivered in November, the Supreme Court specifically upheld the decision of the speaker to disqualify a few MLAs for failing to attend legislative party and internal party meetings,

This question of intra-party dissent had come up in the Supreme Court on Thursday. Given this situation, the High Court should have waited for the Supreme Court to come to a decision, rather than taking these questions up on its own.

Former Rajasthan Deputy Chief Minister Sachin Pilot. Credit: Sachin Pilot via Facebook

There are vaguely worded questions as well. For instance, question four asked whether “the foundational facts based upon which the speaker issued notice, are the facts which if not constitutionally construed in the aforesaid context, would render the provisions itself unconstitutional?”

The “aforesaid context” is essentially the question of whether 2(1)(a) would include intra-party dissent. However, it is not clear from the question what the High Court is implying. Is it asking if the provision itself would become unconstitutional in case dissent is not included or if the speaker’s action in issuing the notices for mere dissent is rendering the provision unconstitutional?

Finally, the High Court held that the petitions of the MLAs are maintainable in view of the 13 questions framed. This is another leap as the question of maintainability primarily involves the question of whether the court has powers to interfere in the speaker’s actions before the process is completed. Should not the court first decide whether a petition is maintainable and then frame substantive questions of law, rather than the other way round?

In this, while it recorded the objections of the speaker, it did not answer the question of jurisdiction one way or the other, even though the Supreme Court had on Thursday allowed it to pass the verdict.

In a further complication, the High Court, after hearing extensive arguments and reserving its verdict, on Friday allowed an application by the MLAs to implead the Centre in the case, thereby further delaying a solution to the case.

If the High Court finally decides that mere dissent does not attract the anti-defection law, the decision by the rebel Congress MLAs actions not to attend the legislative party meetings as an expression of dissent could become legal.