Political developments in Rajasthan have rarely been as interesting as the drama that has been onin the last one month. The saga of the rebellion within the State unit of the ruling Congress, which had threatened to split the party and bring down the government, is not over as yet. At the moment, the focus is on an unusual Assembly session scheduled to be held on August 14.
The session comes in the backdrop of an intense factional fight between Chief Minister Ashok Gehlot and Sachin Pilot, former Deputy Chief Minister and erstwhile president of the party’s State unit. The dramatis personae in this entire saga also include the supporters of Gehlot and Pilot, apart from the office of the Governor and the courts.
The office and powers of Rajasthan Governor Kalraj Mishra became a talking point when he repeatedly turned down Gehlot’s request to convene an Assembly session. It took three letters to the Governor and a dramatic sit-in protest by Gehlot and his legislators on the lawns of the Raj Bhavan to force Mishra to convene an Assembly session.
The Bharatiya Janata Party (BJP), which has all along denied any role in the crisis, sharply criticised Gehlot for his “language” and actions against the Governor. Mishra finally relented after much prevarication and it was mutually agreed that the Assembly would convene on August 14, although Gehlot had stated July 31 as his preference. As soon as the date was announced, Gehlot, who had housed his supporters in a hotel in Jaipur to prevent poaching, shifted them to Jaisalmer. Pilot and his faction stayed put in a hotel in Haryana, where they had moved to in July.
There were some indications from the Pilot camp that they would attend the Assembly proceedings. Pilot also congratulated Govind Singh Dotasara who replaced him as Pradesh Congress Committee president.
In the 200-member State Assembly, the undivided Congress has 107 legislators; the opposition BJP 72; the Rashtriya Loktantrik Party (RLP) three; the Bharatiya Tribal Party (BTP) and the Communist Party of India (Marxist) two each; and the Rashtriya Lok Dal (RLD) one. There are 13 independent MLAs, 12 of whom supported the Congress—along with the BTP and the RLD—in the Rajya Sabha elections.
Genesis of crisis
Turmoil began in the Congress after the party accused Pilot and his supporters of conspiring against the government in collusion with the BJP, a charge the rebels denied.
The party issued show-cause notices after the rebels stayed away from two successive meetings of the Congress Legislature Party (CLP) that were convened to discuss the charges of conspiring to topple the government. The conspiracy, according to the Gehlot camp,had been brewing since the Rajya Sabha elections.
The party sent notices to all the legislators with the warning that not attending the CLP meetings without justification would invite action under Constitutional statutes.
The Rajasthan Police had already initiated inquiries against several people in the government, including Pilot and the Chief Minister, to investigate a conspiracy against the government. The impartiality of the move was questionable as Gehlot is also the Home Minister and the police report to him. For Pilot, this was the last straw.
Matters came to a head when Pilot and his supporters refused to reply to a notice issued on July 13 by the Chief Whip directing them to attend the CLP meeting on July 14 or to the show-cause notice from Speaker C.P. Joshi subsequently under Article 2(1)(a) of the Tenth Schedule of the Constitution.
In the notice of July 13, Chief Whip Mahesh Joshi said that “in view of the exigencies of the prevailing political situation in the State on account of repeated defections and to discuss and draw out a political strategy”, a CLP meeting had been called at Hotel Fairmont on July 14.
The letter also expressed displeasure with the absence of some legislators at a similar meeting called the same day. The letter made it clear that absenteeism without valid and adequate reasons would be interpreted as evidence of their “intention to dissociate from the Indian National Congress and its ideology” and would invite action as per the relevant statutes of the Constitution of India.
When Pilot and his 18 supporters abstained once again, the Chief Whip filed a complaint under Paragraph 2(1) (a) of the Tenth Schedule and petitioned the Speaker claiming that 19 legislators had tried to topple the government. He added that by doing so, they had voluntarily given up membership of the Congress party, which was actionable under the anti-defection law. The Speaker promptly issued disqualification notices to the 19 legislators, asking them to reply by July 17.
There was further drama as some audio clips with controversial content surfaced. They involved three persons, one of whom wasallegedly a BJP Union Minister from Rajasthan and another a Congress legislator close to Pilot.
The All India Congress Committee removed Pilot from the posts of State president and Deputy Chief Minister. Two of his Cabinet colleagues were also removed.
The 19 rebels then petitioned the High Court on July 16. Their lawyers argued that the Chief Whip’s complaint was full of surmises and assumptions and that it lacked factual ground to support the apprehensions. They added that none of the MLAs had declared their intention to leave the Congress or voluntarily give up their party membership and that there was no utterance that indicated they were out to destabilise the government.
The lawyers also said that just because an elected representative sought to express disagreement with policies, it did not tantamount to acting against the interests of the party or the government.
According to them, not attending two party meetings or voicing a difference of opinion outside the House could not be brought under the purview of the Tenth Schedule. They added that no reasons were recorded in the show-cause notice.
The lawyers pointed out that a complaint alleging defection by Bahujan Samaj Party (BSP) legislators was made in September 2019 but no action was taken by the Speaker. The rebel MLAs also said that they had apprehensions that the Speaker, without following the procedure of law, would disqualify them under pressure from the Chief Minister.
The matter was first heard by a single Bench, which referred it to a double Bench after amendments were made to the original petition whereby the constitutionality of the anti-defection law was challenged on grounds that it was against the “basic structure of the Constitution”.
The basic structure referred to in this context was the right to freedom of speech and expression, which the petitioners claimed they had. The counsel representing the Rajasthan government vehemently opposed the inclusion of the additional parts, stating that the basis for incorporating the parts had been rendered untenable by the Supreme Court itself.
The writ petition was also non-maintainable as it was a qua timet (an action or injunction against an apprehended act) action, which was not allowed as per the judgment of the Constitution Bench in the Kihoto Hollohan vs Zachillu & Ors (1992) case.
There were also no provisions in the Rajasthan Legislative Assembly (Disqualification) Rules that stated that the Speaker had to record reasons in a disqualification notice.
Meanwhile, the High Court directed the Speaker to defer the proceedings against the rebel legislators as the matter was being heard in court.
As there were repeated deferments, the Speaker moved the Supreme Court with a plea that he should be allowed to proceed with the disqualification notices, but the Supreme Court turned down the request on the grounds that the High Court was yet to give a verdict.
On July 24, the High Court ruled that the status quo would prevail on the disqualification notices issued by the Speaker but declined to give a fresh date to hear the challenge to the constitutionality of the Tenth Schedule.
The double Bench framed a series of 13 questions pertaining mostly to Paragraph 2(1)(a) of the Tenth Schedule, queries similar to those raised in the amended petition of the 19 legislators.
The Speaker withdrew his petition from the Supreme Court and it appeared that the Congress would fight it out politically, considering it had received two setbacks consecutively, first when the Supreme Court declined to stay the High Court’s proceedings and second when the High Court restrained the Speaker from proceeding on the disqualification notices.
Back to court
Things took a fresh turn on July 29 and 31 when both the Speaker and the Congress’ Chief Whip in the State approached the Supreme Court separately challenging the High Court order of July 24.
In a special leave petition (SLP), the Speaker said that the High Court’s order was unconstitutional and was “a direct intrusion into the domain exclusively reserved for the Speaker under the Tenth Schedule of the Constitution”.
He also said that the order was in contravention of the settled legal position with a reference to the order in Kihoto Hollohan vs Zachillhu, which held that a judicial review could not be made available at a stage prior to the decision made by the Speaker or Chairman and qua timet action would not be permissible, nor would interference be permissible at the interlocutory stage of proceedings.
The only exception, as per the Kihoto order, was when the Speaker passed an order disqualifying or suspending a member. In his SLP, the Speaker said that he had only issued a notice and not passed any adverse order.
The High Court did not give any reasons for passing the order. The effect of the order was to “efface Para 2(1)(a) of the Tenth Schedule from the Statute book”, he said.
He submitted that “a mere challenge to the validity of the constitutional provision could not result in the provision itself being inoperable till the court decided the same”.
The SLP also stated that the High Court had acted in “gross judicial indiscipline” and impropriety by reopening issues that were settled by a Constitution Bench of the Supreme Court.
In the Kihoto Hollohan judgment, it was settled that the Tenth Schedule did not violate the basic structure or the freedom of speech and expression.
The petitioners were, therefore, “seeking to achieve indirectly” what they could not achieve “directly”, the SLP said. The High Court had granted “extraordinary indulgence” to the petitioners by listing the writ petition on a day to day basis. The SLP said that only the Speaker could settle the issue of whether the conduct of the legislators was “democratic dissent” or was tantamount to crossing over.
The 13 questions framed by the Division Bench of the High Court were already settled in law, the SLP said, with a prayer to the Supreme Court to ensure that all Constitutional authorities including the judiciary exercised their jurisdiction within their “Lakshman rekhas”.
Chief Whip’s petition
In his SLP, similar to that of the Speaker, the Chief Whip contended that the High Court order had the “effect of emasculating the provisions of para 2(1)(a) of the Tenth Schedule of the Constitution itself”.
Under the Tenth Schedule, para 2(1)(a) allows for disqualification proceedings against a person who has voluntarily given up membership of his political party.
The Chief Whip petitioned the Supreme Court to declare the High Court order ex facie (on the face of it) illegal and unconstitutional. The High Court had “exceeded its jurisdiction in issuing a status quo” on the disqualification proceedings, the Chief Whip said in the SLP, adding that the “exclusivity of the Speaker’s power under the Tenth Schedule” had been upheld in the Keisham Meghachandra Singh vs Speaker of Manipur Assembly (2020) judgment, wherein it was held that interlocutory orders by courts interdicting the Tenth Schedule proceedings were not permissible.
This judgment had also referred to the Kihoto Hollohan case, where the Constitution Bench had made it amply clear that no judicial review was available at a stage prior to the making of a decision by the Speaker either by a qua timet action or by interlocutory orders.
Among other things, the petition said that “grave and sinister attempts” were made to break the ranks of the Congress party and topple the elected government. It said that the legislators had deliberately absented themselves from two crucial meetings despite numerous reminders and notices and that they had, through the media, demanded a floor test and alleged that the Congress had cheated the people.
It also said that the rebel MLAs had become inaccessible and incommunicado and, despite repeated requests, did not return to the parent State or meet the leadership in Rajasthan or Delhi.
It also mentioned the audio conversations with references to bribes and allurement.
Apart from referring to the Kihoto Hollohan order, the Chief Whip’s petition alluded to recent Supreme Court judgments in Shrimanth Balasaheb (2020), Ravi S. Naik vs Union of India (1994), and Jagjit Singh vs State of Haryana (2006), all of which upheld the Speaker’s decision pertaining to various disqualification orders.
In Ravi S. Naik, the SLP said, the Supreme Court had ruled that even in the absence of a formal resignation from membership, an inference could be drawn from the conduct of a member that he had voluntarily given up membership of the political party he belonged to.
“By directing the status quo, the High Court has done indirectly what it could not have done directly, that is, staying the operation of the Tenth Schedule 35 years after it was inserted vide the 52nd Constitutional Amendment Act in 1985,” the SLP stated. The High Court order had disregarded the “presumption of the constitutionality of the statutes” and had “impinged on the domain of the legislature” despite the protective shield of Article 212, which expressly laid down that courts were not to inquire into the proceedings of the legislature. The High Court order helped the respondents secure “relief over and above their original grievance that the Speaker did not give them seven days of time”, it added.
The petition also said that the substantive questions related to the interpretation of the Constitution, that is, whether the Tenth Schedule violated the basic structure of the Constitution, could only be heard by a five-judge Bench of the Supreme Court and the court was was the ultimate arbiter.
Crucial Assembly session
The proceedings of the Assembly session on August 14, and the conduct of the rebel legislators in particular, will indicate the political future of the Congress government. If Pilot and his 18 supporters decide to oppose the government on the floor of the House either by voting against a Bill or staying away or even break away, the Congress’ effective strength will comes down to 89. It will need the support of 12 MLAs to prove a simple majority.
As things stand, Gehlot seems to have the backing of 12 independents, one MLA from the RLD and two legislators each from the BTP and the CPI(M). The BJP along with its ally, the RLP, has the support of 75 legislators and one independent, taking its support base in the Assembly to 76.
However, it is not only a question of Gehlot saving his government; Pilot too would have to think of his political future outside the Congress if the differences fester. The legal battle is also an issue that needs some settlement.
The overall indecision on the part of the Congress central leadership has only made matters worse. The political situation continues to be as fluid as it was in mid-July.