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Saturday, September 19, 2020

House vs Court

The court’s 13 questions could prise open spaces in a political party — and also risk judicial over-reach

By: Editorial | July 27, 2020 4:00:55 am
House vs Court The political, legal and constitutional issues raised by the unfolding Rajasthan drama will require careful disentangling.

The political, legal and constitutional issues raised by the unfolding Rajasthan drama will require careful disentangling. But a few things are already clear: There is evident bad faith on all sides, a shadow over the credibility of every player. Chief Minister Ashok Gehlot tried to stamp out the rebellion within by bizarre acts of heavyhandedness like the sedition notice served by his government to his own deputy, which became the trigger for the current unravelling. The Sachin Pilot camp of dissenting MLAs has taken recourse to an unedifying cloak-and-dagger resort politics. Governor Kalraj Mishra, by sitting on the chief minister’s demand for a floor test — the most transparent way of settling doubts about the government’s continuing viability — is inviting accusations of partisanship. The Courts — both the high court, which has stayed disqualification proceedings against the 19 MLAs by the assembly Speaker and framed 13 questions that recast the matter as one that involves larger questions of freedom of expression and basic structure of the Constitution, and the Supreme Court which has so far played along — have scarred their own record when it comes to protecting and seen to be protecting dissent.

And yet, the 13 questions framed by the Rajasthan High Court strike a chord. This is so because of a political culture defined by an anti-defection law which, in its zeal to prevent “aaya ram, gaya ram” politics or horse trading, has shrunk the open spaces within parties, excessively empowering the party high command at the cost of the freedoms of legislators. In the backdrop is also the trend of brute electoral majorities, which makes dissent within the political behemoth as important as, if not more vital than, the opposition without. In this context, the high court’s prodding could open up space for a wider deliberation on some vital issues — on what “defection” means, and where the line is to be drawn between “crossing over” and intra-party dissent. Can the “expression of dissatisfaction or disillusionment and the strongly worded opinion against the party leadership”, be seen as conduct falling under the ambit of Para 2(1)(a) of the Tenth Schedule of the Constitution, which deals with an MP or MLA who “has voluntarily given up his membership of such political party”? After all, the 19 rebel MLAs insist that they remain with the Congress, despite their grievances with Gehlot’s leadership. The high court’s questions also problematise the party whip and its applicability.

In 1992, a five-judge Constitution bench of the Supreme Court in Kihoto Hollohan upheld the constitutional validity of the Tenth Schedule and cast a specific prohibition on courts intervening in disqualification matters ahead of the Speaker’s ruling. As the matter comes up again before the Supreme Court today, therefore, there is existing jurisprudence and law, and uncharted territory ahead. The process that has begun with the Rajasthan HC’s 13 questions could lead to less opacity and greater openness in the building blocks of parliamentary democracy. But treading into the inner lives of parties could also be fraught with risks — it is a slippery slope from reform to imperilling autonomy.

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