Updated: July 16, 2020 7:04:15 am
Rajasthan Speaker CP Joshi has served notices to 19 Congress MLAs including Sachin Pilot asking them why they cannot be disqualified. The MLAs have time until July 17 to reply. The political manoeuvres around defection and disqualification are likely to follow, in certain aspects, the events of 2019 in Karnataka, and in April 2020 in Madhya Pradesh.
Why has the Speaker served notice to the 19 Congress MLAs?
The notice has been served under the Tenth Schedule of the Constitution, popularly known as the anti-defection law. The Congress in its complaint to the Speaker has accused the rebel MLAs of attempting to jump parties.
The Congress complaint, and the Speaker’s notice late on Tuesday (July 14) night came after Pilot and the lawmakers supporting him skipped the Congress Legislature Party meetings on July 13 and 14. The meetings concluded with Chief Minister Ashok Gehlot establishing his majority, and with a recommendation to take action against the 19 MLAs. (Follow live updates on the Rajasthan political crisis)
Are the rebel MLAs bound to reply to the Speaker’s notice?
Yes, the MLAs are bound to reply within the two days’ time given to them. If they fail to respond to the notice, the Speaker can proceed ex parte and disqualify the MLAs from the Assembly.
Can the MLAs go to court at any time before the July 17 deadline to reply?
Courts have been extremely reluctant to interfere with the powers of the Speaker under the Tenth Schedule.
While deciding on the disqualification, the Speaker exercises powers that have been conferred to him under the Constitution. The Constitution gives exclusive jurisdiction to the Speaker to rule on disqualifications for defection. Even when challenged, as it was in the case of Karnataka in 2019, the court gave time to the Speaker to decide on the pleas.
Among the arguments presented in the Supreme Court in the Karnataka case last year, was the landmark ruling in ‘Kihoto Hollohan vs Zachillhu And Others’ (1992), in which the court upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs.
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While the Speaker’s decisions can be challenged subsequently, the court cannot stay or prevent the process. This line drawn by the Tenth Schedule to keep the courts away has been misused in many cases. Most recently, in Manipur, the Supreme Court censured Speaker Y Khemchand’s action keeping the disqualification proceedings of seven legislators pending since 2017.
But can the Governor of Rajasthan intervene in the meantime?
If the rebel MLAs choose to tender their resignations to the Governor (even though resignations should under normal course be submitted to the Speaker in a certain format), it would warrant the intervention of the Governor. The Governor can then call for a trust vote if he deems that the Chief Minister has lost the confidence of the House.
In April, the Supreme Court clarified that position, upholding the Governor’s call for a trust vote in Madhya Pradesh, which led to the fall of the Kamal Nath-led Congress government.
A two-judge Bench comprising Justices D Y Chandrachud and Hemant Gupta said that the Governor, in extraordinary circumstances, can call for a floor test, even when the disqualification proceedings of the MLAs are pending before the Speaker, if the Governor “objectively considers” that the government is on shaky ground.
In both Karnataka and Madhya Pradesh, rebel MLAs went to the Governor to tender their resignations first, in order to not attract disqualification.
In the case of Karnataka, the rebel MLAs also moved the Supreme Court, arguing that they had an unqualified right to resign, and had tendered their resignations to the Speaker. This led to a tussle over whether the Speaker can disqualify members after they have already resigned.
In Madhya Pradesh, after the 22 rebel MLAs sent their resignations to the Governor, the Governor asked then Chief Minister Kamal Nath to prove his majority.
What happens if the Rajasthan Governor directs the Speaker to hold a session of the Assembly for a trial of strength?
Even when the disqualification process is pending, the rebel Congress legislators would still have to abide by the party whip in case of a trust vote. If they vote against the party or abstain, they could subsequently be disqualified. However, their vote, even when they disobey the whip, will be counted as it is cast, and not on party lines.
But if they resign as legislators and then jump parties, then the strength of the House and that of the ruling party will be reduced. What happens in the trust vote in a House with reduced strength remains to be seen, even though it appears that Gehlot would have the upper hand.
The MLAs who resign and join the BJP — if they do, that is — will then have to contest Assembly byelections (on BJP tickets) to re-enter the House. This is what happened in Karnataka, and this is what will happen in Madhya Pradesh.
Resigning as an MLA and subsequently joining another party does not attract disqualification. In both cases, resignation and disqualification, the member can contest the byeelection.
However, the key difference is that when a legislator resigns, she can be immediately appointed a minister in the next government and will get six months to get re-elected, but when a member is disqualified, she cannot be a part of the government till she wins the polls. The difference then, is going to polls as a Minister as opposed to a former MLA, a route that is less preferred. (In Madhya Pradesh, the loyalists of Jyotiraditya Scindia will likely contest byeelections as Ministers.)
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In case the disqualification process continues, under what circumstances can the MLAs be disqualified?
There are two conditions on which a Speaker can serve an anti-defection notice to a legislator. The first is when the legislator has voluntarily given up the membership of the party, and the second condition is when a legislator has disobeyed the whip of the party during a vote.
Since the state legislature is not in session and no question has been put to vote on the floor of the House, the second condition does not apply as of now in the case of Rajasthan — even though Pilot defied his party and did not turn up at the legislature party meeting. Defying a whip and attracting disqualification under the Tenth Schedule takes place only on the floor of the House.
Although Pilot and the other 18 dissident MLAs have not resigned from the Congress party officially, the Speaker can under the law gauge their activities. Any activity that is inimical, prejudicial to the interests of the party would be deemed to be giving up membership of the party.
What happens after that, and do the MLAs have any legal recourse afterwards?
The Speaker’s decision can be challenged in court only to a limited extent. In the 1992 Kihoto Hollohan case, the court said only infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice, and perversity can be reviewed.
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