Rajasthan HC Readies to Hear Pilot’s Plea: What’s Really at Stake

Details from the petition filed by 19 Rajasthan MLAs, and what they could spell for how the case will proceed.

Sachin Pilot’s supporters has claimed that they have over 20 MLAs and that Ashok Gehlot’s government is in a minority

(Kamran Akhter/The Quint)

On Thursday, 16 July, Sachin Pilot and 18 other Rajasthan MLAs filed a petition in the Rajasthan High Court, challenging the show cause notice sent to them by the Speaker of the Rajasthan Assembly, who asked them why shouldn’t they be disqualified under the anti-defection law for anti-party activities.

Pilot and the other MLAs have asked the high court to quash the show cause notice, declare that they remain Congress MLAs, and that their actions don’t merit disqualification under the anti-defection law.

The HC was supposed to hear the MLAs’ urgent request to stay the show cause notice on Thursday, as currently the MLAs need to respond to it by 17 July or face disqualification.

However, at the last minute, the MLAs’ lawyers asked for additional time – to amend their petition and include further grounds for challenging the Speaker’s notice. The hearing was then deferred to 1 pm on Friday.

Here are four takeaways from the way the case has proceeded.

1. MLAs SAY THEY WON’T LEAVE THE CONGRESS. OR DID THEY?

On Wednesday, Pilot – recently removed from his positions as deputy chief minister and Rajasthan Congress chief – told several media houses in interviews that he was not going to join the Bharatiya Janata Party (BJP). He claimed that rumours about him jumping ship for the party’s bitter rivals were just meant to create a rift between him and the Gandhi family.

These statements found their way into the petition before the Rajasthan High Court as well, which states that:

“In the meanwhile Sh. Sachin Pilot has issued statements stating that there is no intention of him leaving the congress party and he continues to extend his allegiance to the INC.”

So does that mean that Pilot and the other MLAs are promising not to leave the Congress for the BJP? Not exactly.

If we move past the preliminaries and the really substantive parts of the petition, the language used when referring to this is less unequivocal, and more technical.

In Ground C of the petition, they say that “none of the Petitioners herein have either by express conduct or implied conduct, indicated to the members of their constituencies and/or the public at large of their intention to leave or voluntary give up their membership to the Indian National Congress.” (sic)

The language used here doesn’t actually deny that they want to leave, or are planning to leave. It only says that nothing in their conduct till now indicates that they want to leave or voluntarily give up their membership of the Congress.

That last part is particularly important, as it’s what shows that this is really about. The whole case for disqualification against the 19 MLAs is that by their actions, they have “voluntarily given up membership” of their political party.

This is a ground for disqualification under Paragraph 2(a) of the Tenth Schedule of the Constitution (ie, the anti-defection law). The Supreme Court has previously held that such a disqualification can happen even if the legislator hasn’t submitted an express resignation from their party in so many words. Voluntarily giving up membership can also be inferred from the legislator’s conduct.

That’s how Ashok Gehlot has tried to trap Pilot and his MLAs here. When the notices for the second recent party meeting on 13 July were sent out, they expressly mentioned that failure to attend would be

“deemed to be clear and categorical evidence of your intention to disassociate from the Indian National Congress and it’s ideology and will invite action as per relevant statute and the Constitution of India.”

Since they subsequently failed to turn up, this, read with the alleged attempts by the BJP to bring down the government that Gehlot had already previously talked about, could very well be construed as voluntarily giving up Congress membership. Hence the need for Pilot and his MLAs to include language in their petition to counter it.

It would be a mistake, therefore, to read anything into this statement in the petition, and by corollary, anything Pilot says openly as well.

2. AN INTERESTING CHOICE OF LAWYERS

The Speaker of the Rajasthan Legislative Assembly, CP Joshi, was represented, as expected, by senior advocate and Congress spokesperson Abhishek Manu Singhvi. Singhvi has represented the Congress in pretty much all the recent cases of a similar nature, from the Karnataka government formation and break-up, to the Maharashtra government formation and break-up.

One report claimed that Pilot tried to get Singhvi to represent him in his petition to the high court, but he refused, citing his party commitments.

But this did not mean that Pilot went to court with a less distinguished legal team. He and his 18 MLAs were instead represented by the internationally-reputed senior advocate and barrister, Harish Salve, as well as former Attorney General of India, senior advocate Mukul Rohatgi.

It is vital to stress at this point that when a lawyer represents people from a political dispensation, that does not in any way tie them to that political dispensation. However, the selection of these lawyers only set tongues wagging further.

Rohatgi has represented BJP MLAs as well as rebel MLAs who have then gone over to the BJP in all the recent political crises, on the opposite side of the aisle from Singhvi. Harish Salve, who was reportedly recently approached by the Centre to become Attorney General, has of late supported a number of government policies including on the legality of the CAA, and on criticism of the judiciary vis a vis the government.

Again, as these are two of the most reputed and respected lawyers of the bar, it makes a lot of sense for Pilot to approach them. It is nonetheless a fascinating side-plot to this whole episode.

3. A CHANCE TO FIGHT MISUSE OF THE ANTI-DEFECTION LAW?

One of the longstanding criticisms of the anti-defection law is that it makes it difficult for politicians to act in a principled manner, and that forcing them to comply with the diktats of their party means they can’t truly represent their constituency’s interests.

The MLAs here argue that they only seek to voice their disagreement with certain policies and decisions of some members of the Congress, and that “by no stretch of imagination can a healthy discourse of the pros and cons of the policies sought to be adopted by the political party” lead to the inference that they are trying to leave the Congress.

They argue that not attending the meetings of the party, and voicing a difference of opinion outside the legislative assembly, are matters between an MLA and his party, and have nothing to do with the anti-defection law.

While this is a technical point in the case, it also raises a question of principle.

Should the anti-defection law become a way to stop party members from expressing dissent? Should there really be no way for politicians to express disagreement without being threatened with this ambiguous concept of ‘voluntarily resigning’?

Regardless of one’s political affiliations, this is an important question. On the one hand, this whole situation can be viewed as proving the need for an extra-strong anti-defection law, as along with previous such incidents, it exposes the way in which politicians can be influenced to switch sides and create trouble for a democratically elected government.

On the other hand, the rot in the political system is only made worse by this kind of a system, as it takes away the chance for politicians to act with their conscience, gives the party leadership overarching power, and potentially creates more fertile conditions for horse-trading.

If these legal issues get taken up, however, the courts might clarify what is currently a very nebulous concept – which could end the misuse of the threat of the anti-defection law.

The amended petition by the MLAs focuses on this aspect, adding additional grounds for their argument that by merely expressing dissent, their actions shouldn’t fall within the purview of Para 2(1)(a) of the Tenth Schedule.

They argue that this violates their fundamental right to freedom of speech, and that if the anti-defection law does consider dissent to be equivalent to voluntary resignation, then this aspect of the anti-defection law is unconstitutional.

4. WILL THE 19 MLAs BE DISQUALIFIED FROM STANDING FOR BYPOLLS?

The political issues at play here should not be lost sight of in the legal ones. The central question in the middle of this whole crisis is going to be whether or not the Ashok Gehlot government will remain in power, and how this move could affect the political prospects of the allegedly rebellious MLAs.

As of now, Gehlot still has the majority on the floor of the house, but if some of the independents and non-Congress MLAs supporting his government go, then the situation is no longer clear. The disqualification of Pilot and his MLAs becomes crucial then, as removing them from the equation lowers the number of seats required for a majority, potentially keeping the Congress government afloat.

Of course, that situation can’t last forever, and at some point, bypolls will have to be held for the seats of the disqualified MLAs. However, unlike the position till a year ago, this doesn’t mean Pilot and his MLAs will face a period in the political wilderness.

In the Karnataka rebel MLA case in November 2019, the Supreme Court held that when disqualifying an MLA, the Speaker of a legislative assembly cannot disqualify them for the remaining term of the assembly, or a period of six years as is possible when someone is disqualified for committing a criminal offence. Under the Constitution and the Representation of People Act 1951, they can only be disqualified till the next time they stand for election – meaning they can contest the bypolls.