In mid July 2020, when Rajasthan was in the grip of the COVID pandemic, an unusual development was unfolding in Jaipur. Chief Minister Ashok Gehlot, accompanied by his loyal band of Congress legislators, squatted on the lawns of the Governor’s residence demanding that a Special Session of the Assembly be convened whereby he could prove his majority. The protest lasted nearly five and a half hours. Governor Kalraj Mishra insisted that the Chief Minister should state his reasons in writing for convening the Assembly. The Chief Minister was not required to do so under the Constitution.
Ashok Gehlot wanted the Assembly session to be held as early as possible on July 31, but Kalraj Mishra was not willing to hold it before August 14. He cited procedural issues and the prevailing pandemic as his reason. Kalraj Mishra had earlier served as Governor of Himachal Pradesh and was a Cabinet Minister in the first term of Prime Minister Narendra Modi’s government at the Centre. He was also the former president of the Uttar Pradesh unit of the BJP.
Earlier, in July 2020, Rajasthan Pradesh Congress chief and Deputy Chief Minister Sachin Pilot had openly expressed his dissatisfaction with the State government. His actions could be construed as rebellion, and he had the support of 18 other legislators. The 19 “rebels” issued public statements that the government was reduced to a minority, though none of them had either joined any other party, formed a new party or resigned from the Assembly. They refused to attend Congress Legislature Party (CLP) meetings and instead moved to a hotel in Gurugram, Haryana, a State ruled by the Bharatiya Janata Party (BJP).
The Congress had come to power in 2018 with a razor thin majority in the 200-member Assembly, but speculation was rife about its survival. The Governor and his office helped fuel this speculation by dithering on Ashok Gehlot’s request for an Assembly Session. Politically, Ashok Gehlot had little choice but to prove that his government had the majority in the Assembly. If the MLAs defied the whip, they would stand disqualified. In the Assembly, the Congress’ strength had dipped below the 100-seat mark, although the BJP was far behind with 72 legislators. In the worst-case scenario for the Congress, President’s Rule could have been in the offing had the warring sides not patched up.
When the rebels declined to attend two CLP meetings, Mahesh Joshi, chief whip of the party, complained to Assembly Speaker C.P. Joshi, who issued notices to the rebels, asking them to show cause, by July 17, why they should not be disqualified.
The drama shifted to the courts at this point. The rebels moved the High Court seeking a stay on the disqualification notices and challenging the constitutionality of the disqualification clause. They contended that the clause went against the basic structure of the Constitution.
In the High Court, counsel representing the Rajasthan government argued that the writ petition of the rebels was non-maintainable as it was a quia timet (an action or injunction against an apprehended act) action which was barred as per the judgment of the Constitution Bench in Kihoto Hollohan vs Zachillu & Ors (1992).
The Rajasthan Speaker moved the Supreme Court with a plea that he should be allowed to proceed with the disqualification notices. The apex court declined the request on the grounds that the High Court was yet to give a verdict. The High Court ruled that status quo would prevail as far as the legislators were concerned. Interestingly, the judgment also framed a series of questions around the constitutionality of the disqualification clause, which many constitutional experts at that time felt was totally unnecessary. The Speaker and the chief whip again moved the Supreme Court against the order of the High Court, raising jurisdictional issues and the High Court’s right to deliberate on matters that had already been settled in Supreme Court judgments relating to the Speaker’s right to issue disqualification notices.
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The Special Leave Petition averred 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. Referring to the landmark Kihoto Hollohan judgment, the SLP argued that it was well settled that the Tenth Schedule (which deals with the disqualification of elected representatives on the grounds of defection) did not violate the basic structure of the Constitution. The petitioners were therefore “seeking to achieve indirectly” what they could not achieve “directly”, the SLP averred. The question of whether the conduct of the legislators was “democratic dissent” or tantamount to crossing over could only be decided by the Speaker. The SLP requested the apex court to ensure that all constitutional authorities including the judiciary exercised their jurisdiction within their “Lakshman Rekhas”.
Frontline spoke to Sunil Fernandes, advocate on record, Supreme Court, who represented the Rajasthan Speaker in court, and also the Speakers of Madhya Pradesh and Karnataka. He said that when the Assembly was in session, the Treasury Benches could introduce a confidence motion with the Speaker’s consent. But when the Assembly was not in session and a Special Assembly needed to be convened, it was the Governor’s prerogative to do so. He said: “When Ashok Gehlot told the Governor he would like to seek a vote of confidence, the Governor did not agree, dilly-dallied and cited coronavirus as a reason. That was not constitutional on the part of the Governor. The Supreme Court has laid down very clearly that any recommendation by the Cabinet to the Governor to call a session is binding on him and he should convene it at the earliest unless there was a national emergency or an exigency of that sort. In Madhya Pradesh, the coronavirus did not prevent the government from changing hands. Unfortunately, the BJP, which has always accused the Congress of having the Speaker and the Governor behaving in a partisan manner, has behaved in a manner which has been more gross than the Congress’.”
“Our short legal point was that whenever the Speaker issues a notice under the Tenth Schedule, the High Courts cannot stay those processes. Once he finally passes an order, that can be challenged, but at the pre-decisional stage, one cannot stay proceedings. It was not like some Motor Accident Tribunal or a routine matter. This was fortified by a five-judge Constitutional Bench judgment in 1992, the Kihoto Hollohan judgment. The Supreme Court has clearly stated that whenever a Speaker issues show cause, it cannot be stayed,” he said
Asked whether the State would have headed towards President’s Rule, Sunil Fernandes said that there were Constitutional Bench judgments that laid down the law on Article 356. “It cannot be invoked by Central governments that easily. Just because 17-18 MLAs had expressed disaffection it could not be said there was a breakdown of law and order. Had there not been a rapprochement between the two factions, there was a high probability that the President might have dissolved the Assembly,” he said.
“In Rajasthan’s case, the government itself wanted to prove the majority in the House. Another peculiar thing arose in this case. Earlier the traditional wisdom was when an MLA joined another party that would have rendered him liable under the disqualification clause. This was a classic instance where without joining another political party, the MLAs had indulged in a conduct which was tantamount to giving up the membership of one’s parent party and under para 2(1)(a) of the Tenth Schedule they could invite disqualification. These MLAs had acted in concert, hob-nobbed with BJP leaders, refused to attend CLP meetings, issued press statements, went outside the State, taken the hospitality of a BJP government, and so on. There were a dozen acts where these people were found acting in concert with the opposition or with political parties that were inimical to the present government. All these acts, taken together could qualify for disqualification,” he said.
“They all grow a conscience at the right time. The MLAs in Madhya Pradesh or Karnataka did not defect or join another party. They simply resigned. The Tenth Schedule gets miserably defeated and courts are yet to take judicial cognisance of this. So even if there is no overt hand of any party, the signs are all evident. No one prints the name of the political party they want to defect to on their chests. The Karnataka MLAs were shifted to Mumbai when Devendra Fadnavis was there, but when a Shiv Sena government took over, the scene shifted to Haryana. The Rajasthan MLAs were shifted to Haryana. Now as Bengaluru is more salubrious, it is a more preferred destination. In the Madhya Pradesh crisis, when Digvijaya Singh went to meet the very MLAs he had canvassed for and helped get elected, he was not allowed to meet them by the B.S. Yediyurappa government. Who foots the bill for all these expensive stays and chartered flights? Courts have to decide when a resignation is genuine and when it is a part of a conspiracy to pull down a government. The Tenth Schedule has become a relic. What I am advocating is for all parties. But how many changes can one make in the law? If we have someone who is not living up to one’s oath and the neutrality of one’s office, what can be done? The Bhagat Singh Koshiary example in Maharashtra is a textbook example of what a Governor should not do,” he said.
The Rajasthan Congress managed to survive the challenge to its government. But long as there are methods to interpret and skirt the Tenth Schedule, a government with a thin majority and ambitious legislators will always find itself facing instability.