August 28, 2020
August 30, 2020

Dissecting the Constitutionality behind the Political Crisis in Rajasthan

This piece tries to bring in light the judicial aspects of the political turmoil in the state of Rajasthan. Rajasthan has seen major political upheaval where a bunch of 19 MLAs from the Congress have deemed themselves as rebels by their conduct. Hell broke loose with the show cause notice served against the rebel MLAs by the speaker. The Rajasthan High Court order dated 24.07.2020 has discussed multiple facets of the case and has positively affirmed on the maintainability of the case. The court has directed the “status quo” viz-a-viz the impugned notice dated 14.07.2020. This piece attempts to critically analyse the order passed by the Rajasthan High Court. 
Whether the Court was justified in interfering with the show-cause notice issued by the Rajasthan Assembly Speaker?
The Tenth Schedule of the Constitution, empowers the Speaker or Chairman of the House to act as a judicial body while determining cases of disqualification. Paragraph 6 of the Schedule enunciates the finality of any decision taken by the Speaker and further goes on to indicate that any such proceedings will be construed as proceedings within the House, in reference to Article 122 or 212, as the case may be.
The word of the statute is unambiguous while awarding the Speaker exclusive powers in resolving disputes arising out of disqualification matters. In this case, the relevant question for consideration would be – At what juncture can the Court interfere in disqualification proceedings?
The decision by the Speaker is certainly amenable to judicial review. As stated by the Supreme Court in Kihoto Hollohan, the finality of a Speaker’s decision, as mentioned in Paragraph 6(1) does not abrogate or restrict the aspect of judicial review. Judicial review may be exercised under Articles 136, 226 and 227– in case of infirmities caused by constitutional mandate violations, mala-fides, non-adherence to rules of natural justice and perversity. Though such infirmities can only be adjudicated by the Courts post the completion of disqualification proceedings initiated by the Speaker.
The cause of action for one to approach the Court can only arise once a verdict has been pronounced by the Speaker. The mere issuance of show-cause notices does not warrant for Court interference. Moreover, the Courts do not have the requisite jurisdiction to deal with matters of disqualification at the first instance. The Speaker is the sole repository authority to adjudicate matters of disqualification arising out of the Tenth Schedule, Court interference is only permissible subsequent to a decision pronounced by the Speaker.
Furthermore, the statute and apex court have created a high threshold for judicial interference. The threshold has been established at such a distinct level that even the decision of the Speaker is immune from procedural irregularities by the virtue of Paragraph 6(2) which deems disqualification proceedings as proceedings of the Parliament or Legislature, as mentioned in Article 122(1) or 212(1).    
Can intra-party dissent be construed as defection under the Tenth Schedule?
The right to dissent is a primary tenet of Indian democracy. The idea of democracy has far-reaching branches, and it would be obvious to expect a political party participating in the Indian democratic process to adhere to the same principles of democracy.
Applying a straight jacket formula to all forms of dissent and categorising them as defection under the Tenth Schedule would be a gross constitutional error. The intendment of the Tenth Schedule was to ensure stability in governments and prevent unethical political practices. The Schedule was never intended to curtail one of the primary tenets of democracy.
Raising questions and creating a platform for discourse is a symbol of a healthy democracy. Dissenting voices of elected representatives cannot be suppressed by their own political affiliations in the name of defection. The Tenth Schedule envisages disqualification only on specific grounds as mentioned in Paragraph 2 of the Schedule.
While mere dissent should not call for disqualification, but dissent too has the potential of manoeuvring itself into the field of defection. The dissent took the shape of defection under Paragraph 2(1)(a) in cases like Rajendra Singh Rana, Ravi S. Naik and Dr Mahachandra Prasad Singh since the legislators involved in these cases not only dissented against their own party but openly associated with other political parties. Therefore, dissent cannot become defection under Paragraph 2(1)(a) in the current case, since all the 19 rebel Congress MLAs have only expressed their dissent against the senior party leadership but have not associated with any other political party. In fact, all the rebel legislators have publicly debunked the idea of joining another party. Therefore, it would be safe to assert that dissent has not transformed itself into defection in this case. 
Whether voluntary giving up of membership under the Tenth Schedule be interpreted with a wide scope for the purposes of disqualification?
The question that shall be indulged into, is the ground of “voluntarily given up his membership of such political party” for the purposes of disqualification due to defection. The disqualification grounds find a mention in the Constitution of India under the Tenth Schedule and in Articles 102 (2) and 191 (2). The specific provisions dealing with voluntary giving up of membership finds a place in Paragraph 2 (1) (a) of the Tenth Schedule. 
The Supreme Court through the case of Ravi S Naik held that voluntary giving of membership has a very wide connotation. The most relevant matter for consideration for voluntary giving up of membership would be to determine the conduct of such alleged members on the floor of the House. In fact, the Supreme Court in Dr. Mahachandra Prasad Singh’s case had upheld the disqualification of a member for conduct off the floor of the House but the same needs to be understood under the light of the fact situations. In reality, the present case is prima facie different where the alleged legislators have not shifted their allegiance from their affiliated party to any other political outfit. The grey area of the anti-defection law is under question in this case. The situation has brought into light the jurisprudential crisis of determining the standing of a member who by conduct is critical of the functioning of the party, but the same is not on the floor of the House and is unwilling to join any other political entity.
The drafters of the Tenth Schedule had envisioned a provision to the extent of having an express provision to deal with people expelled from political parties and had recommended the insertion of the following in Paragraph 2 of the Schedule:
“(c) If he has been expelled from any political party in accordance with the procedure established by the Constitution, Rules or regulations of such political party.”
In the alternative, the above sub-section was not made a part of the Constitutional Amendment after due deliberations. In the Parliamentary Debates relating to the Constitution (52nd amendment) Bill, 1985 several legislators had pointed out that political dissent would be trampled if such an enactment would be passed. It must be admitted therefore that the legislature did not intend that mere expulsion should be, cause enough to seek disqualification from the House under the Tenth Schedule. The expulsion of a member from a political party will not automatically lead to his expulsion from the House. The political party which has expelled its member will no longer want to associate itself with the said member under any capacity. The dilemma arises at the point when the party cannot equate expelling with the disqualification grounds set under Paragraph 2 of the Schedule. The vision behind such semblance was to prevent political submersion.
Whether an elected representative can be disqualified for disobeying the party whip outside the House?
The primary functions of a whip is to manage the conduct of the elected members of an assembly or parliament. In reality, the whip also directs its fellow colleagues to vote and carry out their conduct in a manner conducive to their party. The whip acts as the voice of the party and functions on the interests of the party at large.
The role of the whip is assigned by virtue of parliamentary practise and not by any explicit rule of law. The whip is usually limited to function during the course of assembly sessions and is an appointee of the legislature party and not any official party post-bearer. The powers of the whip cannot be interpreted in a wide manner since it is a position created by the practices of the assembly
The position of the whip has gained a lot of traction in the ensuing debate over the nexus conduct within and outside the House for attracting disqualification proceedings. It needs to be understood that the Tenth Schedule proceedings are intended solely for the purpose of “floor crossing” or proceedings within the House is an unqualified statement. It covers a wide array including their conduct outside the House, defiance of whip and such issues. In fact, defiance of the whip is a primary instance taken note of for the purposes of initiation of disqualification process. 
The role of the whip when the assembly is not in session is subject to scrutiny. The case of Shrimanth Balasahib Patil holds relevance to the current case insofar as disobedience of the legislators is concerned towards their party whip coupled with their absence from party meetings. Though this case can be clearly differentiated from the current one on account of the fact that the House was not in session when the party meeting was called on 13.07.2020 and 14.07.2020. It will be relevant for the court to decide on matters in relation to disobeying the whip under the Tenth Schedule when the House is not in session.
To conclude, there seems to be no reason for the rebel MLAs to be disqualified. Nonetheless, the interference of the Court was premature and unwarranted. The demand by the Chief Minister, Ashok Gehlot to bring the House in session may be seen as the last attempt by the Congress to determine the true allegiance of these rebel legislators by the performance of a floor test.     




Andolan Sarkar is a fourth-year law student at Jindal Global Law School, O.P.Jindal Global University.




Soumyajit Joardar is a third-year law student at Jindal Global Law School, O.P.Jindal Global University.

In Content Picture Credit: Sabrang India


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