As the second day of hearings on a petition against Rajasthan Speaker’s show-cause notice against 19 ‘rebel’ MLAs begin, defendants place strong arguments; previous rulings by SC are also cited
Approximately around 10.15 am today (July 20) the Rajasthan High Court resumed hearing of the petition filed by dissident Congress MLAs led by Sachin Pilot against the disqualification notices issued by the Rajasthan Assembly Speaker.
Starting the day, Congress Spokesperson and Senior Advocate Abhishek Manu Singhvi argued that a disqualification procedure is beyond the purview of the court. He said the courts have no jurisdiction over the disqualification of any member and that judicial review is absolutely barred in this case.
As an example, he talks about the Jharkhand case and others and presented a hypothetical case as: “What will happen if the Speaker orders video recordings of court proceedings?” he cited two more judgments on jurisdiction, the 2016 Amrita Rawat And Others vs Speaker case where the court had dismissed a petition challenging show cause notice of the Speaker of the Uttarakhand Legislative Assembly. He also presented before the court the Devinder Sehrawat AAP MLA case. He also cites the Keisham Meghachandra Singh (authored by J Nariman) case, trying to buttress his argument on the limits of the high court’s jurisdiction.
He said there is no cause for action on the writ until the Speaker takes a decision on the disqualification notices.
He went on to say that the Supreme Court, in the 1992 Kihoto Hollohan case, had rejected the arguments raised by senjior Advicate Harish Salve (representing Pilot and others) against the Tenth Schedule. The Tenth Schedule was upheld as a reasonable restriction on free speech, Singvhi argued.
He added that the same arguments, considered and rejected by the SC (in the above case), are being raised by Salve against the constitutionality of paragraph 2(1)(a) of the Tenth Schedule. He said that freedom of speech of a member is not an absolute freedom. He said that the SC had had held that too in the Kihoto case. He said the settled position cannot be reopened by the High Court, adding, that the high court cannot be asked to re-look at a constitution bench decision of the Supreme Court as in the in Kihoto Hollohan case.
Singhvi added: “’Unprincipled defection is a political sin and against constitutional morality’, was the SC’s observation in that judgment.”
He argued that the Speaker can be right, or be wrong. “The Speaker has the right to be wrong,” he said. Taking a technical point, Singhvi said: “This petition is based on the show-cause notice issued by the Speaker. Unless the Speaker has disqualified you, you cannot approach in the interim.”
He said the current case is “much worse”, as there are no new grounds of challenge, and that the petitioners, in an “over-clever” way, have raised the same grounds of challenge, which were considered and rejected by the Supreme Court the Kihoto case.
He said that an interim order staying the Speaker’s notices will amount to a stay on the operation of paragraph 2(1)(a) of the Tenth Schedule. This, he said, cannot be done. Then, quoting SC orders, he said that in matters involving constitutional challenges, courts should be extremely loathe to stay the provisions. “The operation of statutory provisions cannot be stultified in the interim,” he said.
He said that the Speaker is yet to decide on the matter. Just the show-cause notice cannot be stayed. He said that the questions of facts in the notices against 19 MLAs are yet to be decided. He said that there will be different facts associated with each of the 19 MLAs’ displeasure. He said that each matter has to be decided by the Speaker, case-to-case basis. Therefore, Singhvi argued, the Speaker’s exercise of power cannot be interdicted at this juncture.
Explaining this, he said that each MLA’s support is crucial in a government. He said: “Smaller the state, higher the value of each MLA. This is because in a smaller Assembly, the switch of one or two MLAs can be costly.” In support of this he cited the Goa assembly case, where Congress had lost out on a rather slender margin.
He said that the Speaker will be violating the law if he does not act under Tenth Schedule in the instant case.
At this point he also touched upon the membership issue. He said that the issue of voluntary giving up of party membership should be read widely. He added that there is no need for formal resignation (as pointed out by India Legal in this story). He said that giving up of membership can be inferred from the member’s conduct. In this he was quoting from the SC decision in Ravi Naik case (1994).
Singhvi referred to a constitution bench decision in (2007) 4 SCC 270 (para 48, 49) to insist that there was no fixed approach for the Speaker to decide under Para 2(1)(a). He said that while there was no fixed path or formula, the how the Speaker takes his decision remains within the Speaker’s domain.
He said that non-attendance in party meetings may or may not amount to voluntary giving up of party membership. He said this will depend on the facts. He said that the Speaker has to be given the opportunity to decide on that.
Referring to the Karnataka MLAs’ disqualification, upheld by the apex court, her said that failure to attend the party meeting was also a ground for attracting defection under Para 2(1)(a).
He reiterated that the Speaker may or may not pass a correct decision, but there cannot be any interference at the pre-order stage, preempting that Speaker will take wrong decision.
Then Singhvi went on to the time-limit mentioned in the show-cause notice. This was also one point that the petitioners had mentioned, as being rather short. The petitioners’ said the two-day time limit violated Rules which mandate 7 days.
To that Singhvi said that a mere violation of rules, if any, will not void the Speaker’s decision. He went back, again to SC rulings, quoting that natural justice is not dependent on the number of days given for response. The Speaker cannot shut his eyes to the developments happening fast, Singhvi argued.
He said Ravi Naik (1994) was a case of the Speaker giving 2 days for reply, though rules mandated 7 days. But the SC upheld the Speaker’s decision.
He said the Constitution gives leeway to the Speaker to regulate the procedure. Rules are subordinate to the Constitution. Violation of disqualification rules are procedural and any violation of it immune to judicial review. “What prevents them from submitting a reply to the Speaker’s notice?” asked Singhvi.
Quoting from the Ravi Naik decision, Singhvi said: “Any violation of the disqualification rules will not give a ground to review the decision of the Speaker. In any case, in the instant case, the petitioners now have got seven days time to submit their reply.”
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