On July 24, amid high political drama, Rajasthan Chief Minister Ashok Gehlot and his team of legislators staged a sit-in protest for almost five hours on the lawns of the Raj Bhavan, urging Governor Kalraj Mishra to convene an Assembly Session. The Congress party’s need to prove a majority arose after an open rebellion by Sachin Pilot and 18 other legislators threatened to reduce his government to a minority. Gehlot and his Cabinet sent a written requisition to the Governor on July 23 reportedly after a discussion between the offices of the Chief Minister and the Governor.
In the 200-member Assembly, the undivided Congress has a strength of 107 legislators: BJP (72); Rashtriya Loktantrik Party (3); Bharatiya Tribal Party and Communist Party of India (Marxist) two each; Rashtriya Lok Dal (1) and 13 independents, 12 of whom supported the Congress in the Rajya Sabha elections, along with the BTP and the RLD. If Pilot and 18 others break away, the Congress’ effective strength comes down to 89. It would 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.
Kalraj Mishra, a BJP veteran, who had served as Governor of Himachal Pradesh and Cabinet Minister in the first Narendra Modi-led National Democratic Alliance (NDA) government, was in no mood to oblige Gehlot immediately.
Addressing mediapersons who had gathered near the Governor’s residence, Gehlot made a dramatic public appeal to the Governor, replete with references to his gubernatorial duties and Constitutional “conscience”, to convene the Assembly session. He said that this was the first time an incumbent government, and not the opposition, had requested a vote of confidence.
Meanwhile, a section of the media and the State unit of the Bharatiya Janata Party (BJP) sharply criticised Gehlot for the protest. However, Gehlot pointed out that even the late Bhairon Singh Shekhawat had used similar political language and paraded his legislators in front of the then Governor, adding that such peaceful protests were part of political democracy.
Senior Congress leaders came down heavily on the Governor for refusing to act on the State government’s advice. The Communist Party of India (Marxist), which has two legislators in the Assembly, also criticised the Governor’s delaying tactics.
As the spotlight shifted to the Governor, Kalraj Mishra’s office issued a press note stating that no one was above Constitutional norms and “politics of pressure” will not work.
The note blamed the delay in his decision on the letter sent by the Rajasthan Cabinet on July 23 which, it said, was silent on many aspects. For instance, the note said, the letter did not mention the date when the session could be convened and did not specify an agenda, and it had been sent at very short notice even though the notice period for convening an Assembly session was 21 days. It wondered why the Gehlot government needed a trust vote if it had a majority in the Assembly. Sources told Frontline that the Cabinet met again on July 24 night and decided to send another letter to the Governor asking him to convene the Assembly.
Status quo to prevail
The inner-party tussle and political impasse in the Rajasthan Congress took a complicated turn after a Division Bench of the Rajasthan High Court, while hearing a petition by Pilot and his 18 supporters, ruled that status quo would prevail on the show cause notice issued by the Rajasthan Assembly Speaker on July 14 to the rebels.
The disqualification notice invoking the anti-defection clause (Tenth Schedule of the Constitution) was sent to the 19 MLAs after they stayed away from two successive Congress Legislative Party (CLP) meetings on July 13 and 14 called by the party whip to discuss an alleged conspiracy to topple the government. The CLP meeting was also supposed to discuss the issue of the audio clip with recordings of an alleged conversation between a Union Minister, a middleman and a Congress MLA, hinting at deals to destabilise the government. The Congress moved a resolution to disqualify the 19 MLAs on July 14 on the grounds that they had, by their actions, “given up the membership of the party” and issued notices to them in that context as per the Rajasthan Legislative Assembly (Disqualification) Rules, 1989.
The rebels did not reply to the notices but moved the Rajasthan High Court challenging them and sought a directive from the Court to declare them Congress party members and members of the Assembly.
Pilot had stated that the Congress government had been reduced to a minority and that he had the support of 30 legislators, a claim he has not been able to prove so far.
During this turmoil, the rebel MLAs stayed put at a hotel in Gurugram, Haryana. Since the BJP is in power in Haryana, there was speculation the party was somehow involved in the entire saga..
The BJP leadership in the State, which has been in a wait-and-watch mode, held a press conference condemning Gehlot for the “language” he used against the Governor, for violating “social distancing” norms and for demanding an Assembly session amid the COVID-19 pandemic.
The Congress, on its part, argued that if a new government in Madhya Pradesh could be sworn in amid the pandemic, an Assembly session could certainly be convened in Rajasthan.
The rebel MLAs were supposed to reply to the show-cause notice by July 17 but they approached the High Court seeking a stay on the notice on the grounds that they could not be disqualified as they had not quit the party or engaged in any anti-party activity.
The petition also raised questions on the constitutionality of the anti-defection law vis-a-vis the right to freedom of speech. Its core contention was that political dissent was not akin to anti-party activity.
Meanwhile, the Congress suspended two MLAs in the Pilot camp from the primary membership of the party. One of them, Vishwendra Singh, was a Cabinet Minister.
Their petition was amended to challenge the constitutional validity of para 2(1))(a) of the Tenth Schedule. The matter was shifted from a single-judge bench to a Division Bench.
The High Court directed Speaker C.P. Joshi to let the rebels reply to the show-cause notice by July 24, by which time it was to have to announced its final verdict. Prior to the disposal of the petition challenging the Speaker’s show-cause notices, Joshi approached the Supreme Court with a Special Leave Petition (SLP) seeking a stay on the High Court’s intervention on two issues: one, the Tenth Schedule proceedings, and two, restraining the Speaker at the stage of issuing the notice itself and calling for the replies as well as conducting the disqualification proceedings.
The Speaker’s main plea was that his jurisdiction had been violated. The High Court’s directive flew in the face of a five-judge Constitution bench order (Kihoto Hollohan v Zachillhu & Ors, 1992), which expressly held that courts could not interdict the Speaker at the “quia timet” stage. (Quia timet is an injunction to restrain wrongful acts that someone threatens to commit or which are imminent)
Upholding the Speaker’s right to issue a notice, the judgment held that “judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings.”
It was further argued that the proceedings under the Tenth Schedule before the Speaker were proceedings of the legislature and, therefore, could not be interfered with as per Article 212 and para 6(2) of the Tenth Schedule.
Article 212 prohibits courts from questioning the validity of any proceedings of the legislature on the grounds of any alleged irregularity of procedure. 212(2) is even more explicit in protecting the rights of the officers or the legislature. It says: “No officer or member of a legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.”
The article was in tandem with the Tenth Schedule as the latter expressly states that all proceedings relating to the disqualification of a member of a House (Parliament or Assembly) would be deemed to be proceedings in the Legislature of a State within the meaning of Article 212. The decision of the Speaker itself was subject to judicial review on limited grounds.
There were enough judicial precedents upholding the rights of the Speaker and the Legislature, including one dating as far back as 1959. The SLP before the Supreme Court said that in a matter dealing with the regularity of procedure within the Legislature, a seven-judge bench in Pandit M.S.M Sharma v Sri Krishna Sinha had, in 1959, ruled that the petitioner had no fundamental right as claimed and that the validity of proceedings inside a State Legislature could not be called in question on the allegation that the procedure laid down by the law had not been strictly followed.
The judgment also held that even if the Legislature had not complied with the requirements of procedural law for conducting its business, it could not be grounds for interference by the court under Article 32 of the Constitution.
Referring to the more recent Kihoto judgment, the SLP contended that the judgment had explicitly laid down that “the scope of judicial review under Articles 136, 226, 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 would be confined to jurisdictional errors only, viz, infirmities based on violation of constitutional mandate, mala-fides, non-compliance with rules of natural justice and perversity.”
Judicial review, therefore, could not be made available at a stage prior to the making of a decision by the Speaker/Chairman, nor would interference be permissible at an interlocutory stage of the proceedings. An exception could be made, wherein either disqualification or suspension was imposed during the pendency of the proceedings.
Kapil Sibal, the counsel for the Speaker, argued in the Supreme Court that the notices, sent on July 13 and July 14 as there were two meetings of the CLP, were limited to the narrow objective of inviting comments from the respondents (rebels), that nothing adverse was said in them and that it was not a final determination or decision on disqualification but only the initiation of the proceedings.
Sibal argued that it was not a “whip” but a notice issued by the Chief Whip asking the legislators to attend the meetings. He also pointed out that there was a lot of judicial precedents where High Court and Supreme Court judgments had held that even after a reasoned order was passed by the Speaker, there were limited grounds for judicial interference.
The Supreme Court refused to stay the relief given by the High Court to the rebels until July 24 but ruled that whatever order that the High Court passed would be subject to the outcome of the petition in the Supreme Court.
Interestingly, the Supreme Court Bench comprising Justices Arun Mishra, B.R. Gavai and Krishna Murari commented that there were “larger questions of democracy involved”. Pilot and his rebel team were represented by former Attorney General Mukul Rohtagi and Harish Salve.
High Court’s questions
Interestingly, the High Court also framed as many 13 posers in its order. It asked whether the Kihoto judgment had glossed over intra-party dissent in the context of the Tenth Schedule; whether the anti-defection clause violated the basic structure of the Constitution and whether there was a possible violation of the fundamental right of freedom of expression, Article 19(1)(a) by Paragraph 2(1)(a) of the Tenth Schedule.
The Court also asked whether an expression of dissatisfaction and strongly worded opinions against the party leadership fell within the scope of the Tenth Schedule; whether the facts in the Speaker’s notice were constitutionally construed; and whether a differentiation could be made between the manner of exercise of jurisdiction of the Speaker vis-a-vis the existence of jurisdiction in the context of commencing with a proceeding against a legislator.
It wanted to know whether the ‘whip’ applied to actions inside the House; whether the notice issued by the Speaker was violative of the essence of democracy and aimed at throttling dissent against persons in power; and whether the voice of the petitioners seeking a leadership change was being stifled.
The Court wondered whether a criticism of the Chief Minister or functioning of the State unit of the Party by a legislator was tantamount to “voluntarily giving up membership” under the Tenth Schedule; whether the action of the Speaker taken in haste was not mala fide and an abuse of power, in breach of natural justice and betrayed a foregone conclusion; and lastly, whether the judgment in Kihoto’s case could bar the High Court from examining these questions.
With the High Court order directing a status quo, and the Supreme Court yet to take up the issues raised in the SLP, Gehlot probably decided that politically the next best option was to press for an Assembly session. On the face of it, it appears that Gehlot, whose association with the Congress dates back to the 1970s, is in no mood to give in.
Pilot’s options also seem limited as the number of MLAs supporting him does not exceed 18 MLAs who have rallied behind him.
In the 200-member Assembly, Gehlot might manage a wafer-thin majority as he has the support of some independents, the Bharatiya Tribal Party and the CPI(M). He is keen on a trust vote because it would force the rebels to act; either they vote in favour of the government or risk disqualification if they stay away or vote against the government.
Gehlot told mediapersons that apart from the trust vote, the Assembly session was required to discuss the COVID-19 situation and lockdown-related issues.
Pilot vs Gehlot
The ongoing slugfest between Pilot and Gehlot began in the run-up to the Assembly elections in 2018 itself. Gehlot was always uncomfortable with Pilot as Pradesh Congress Committee president, who had been foisted on him by the central leadership.
Pilot felt that he was the natural claimant for the post of Chief Minister since he believed that he had steered the party to victory in the 2018 Assembly elections.
The internecine battle took a new twist in July before the Rajya Sabha elections when Gehlot expressed apprehensions that there was a conspiracy to topple his government by a combination of the BJP and some of his legislators.
The saga that began as a political disagreement took a peculiar turn when the Home Department sent notices to Pilot, a few legislators in his camp and to Gehlot. The Home portfolio is held by Gehlot himself. Amid all this, raids by the Central Bureau of Investigation and the Enforcement Directorate on persons close to Gehlot raised questions about the role of the central investigating agencies in this affair. Rajasthan is one of the remaining few bastions of the Congress.
Observers said that matters would not have reached a flashpoint if the party’s central leadership had managed the ambitions of both Gehlot and Pilot in a better way . Ironically, Pilot has maintained that he isnot joining the BJP and Gehlot has said that he is open to welcoming Pilot back.