Speaker, Governor, Merger: 3 Key Legal Battles in Rajasthan Crisis

Video Editor: Deepthi Ramdas

On Monday, 27 July, three important developments in the ongoing Rajasthan political saga took place.

• First, the Rajasthan Speaker, CP Joshi, withdrew his petition in the Supreme Court challenging the high court proceedings which had prevented him from ruling on the disqualification of Sachin Pilot and his 18 MLAs.
• Second, the Rajasthan Governor, Kalraj Mishra, sent a set of clarifications to Chief Minister Ashok Gehlot, without which he is yet to agree to summoning the state’s legislative assembly.
• Third, the Rajasthan High Court dismissed the plea by a BJP legislator challenging the ‘merger’ of six BSP MLAs with the Congress, which took place in September 2019.

Each of these three developments relates directly to the three key legal issues which will continue to play out over the next few days, if not weeks, which will have a major bearing on how the Gehlot-Pilot tussle will end – and could determine the fate of the Congress government in Rajasthan.

ISSUE 1 - SPEAKER’S POWER TO DISQUALIFY MLAs UNDER THE ANTI-DEFECTION LAW

This was where the legal tussle really started, with Sachin Pilot and his 18 MLAs approaching the Rajasthan High Court to challenge the ‘disqualification notices’ sent to them by the Speaker.

These show-cause notices from the Speaker asked them to explain why they shouldn’t be disqualified for anti-party activities, as the Congress were alleging that by failing to turn up for meetings despite specific warnings, and their jaunt to Manesar, the MLAs in the ‘Pilot Camp’ had shown they were voluntarily giving up membership of the Congress party.

This would be grounds for disqualification under Paragraph 2(1)(a) of the Tenth Schedule of the Constitution (ie, the anti-defection law), if the Speaker agrees with the Ashok Gehlot side of the Congress. Under Para 2(1)(a), voluntarily giving up membership of one’s political party is grounds to disqualify a legislator – this doesn’t require a resignation letter, and can be inferred from conduct, according to the Supreme Court.

Pilot and his MLAs argue that they have not given up membership of the Congress and are still part of the party – they are only expressing dissent, they say, and this should not be grounds for disqualification. As a result, they have challenged the show-cause notices from the Speaker, and also argued that if their expression of dissent can be considered a violation of Para 2(1)(a), then Para 2(1)(a) of the Tenth Schedule is unconstitutional.

The Speaker and Gehlot Camp’s argument in the Rajasthan High Court has been simple: nobody has been disqualified yet, and the Speaker has full discretion when it comes to the anti-defection law. No challenge lies in court at this time to the Speaker’s conduct, though judicial review may be possible of whatever decision the Speaker takes.

This, their lawyers Abhishek Manu SInghvi and Kapil Sibal have argued, is the dictum laid down by a Constitution Bench of the Supreme Court in the 1992 Kihoto Hollohan judgment, and cannot be ignored.

The Rajasthan High Court has nevertheless decided there are important issues of law involved in Pilot and his MLAs’ plea as it touches on freedom of speech, and has agreed to hear his arguments on those issues. It has also issued an order to the Speaker to maintain the status quo when it comes to the disqualification proceedings, which means the Speaker cannot take a decision whether to disqualify the MLAs or not till the high court proceedings are over.

While Pilot’s argument about how the anti-defection law should not be used to crush dissent, given the fundamental right to freedom of speech, is an important one in principle, the high court and indeed the Supreme Court (till the Speaker withdrew his petition) appeared willing to ignore the precedent laid down in the Kihoto Hollohan judgment, and the clear wording of the Tenth Schedule, which vests discretion to decide on disqualification with the Speaker alone.

The Supreme Court in recent decisions, such as the Karnataka political crisis, also appeared to have recognised this power of the Speaker, and while it has held that the Speaker can be asked to decide such matters in a timely manner, the courts are otherwise expected to not interfere in the Speaker’s decision-making process. Yet this is exactly what the Rajasthan High Court appears to have done in its orders from 21 and 24 July.

Moreover, the new challenge raised by Pilot on constitutionality of Para 2(1)(a) of the Tenth Schedule also appears to be problematic, as the apex court had already upheld the constitutionality of the entire Para 2 in Kihoto Hollohan.

The dispute over this issue will be key to deciding the Rajasthan High Court’s eventual judgment on Pilot et al’s plea, and could play a crucial role in the trust vote/floor test equations that will decide whether Gehlot’s government survives.

ISSUE 2 - CAN GOVERNOR AVOID SUMMONING ASSEMBLY WHEN GEHLOT GOVT WANTS?

The next big legal issue is a constitutional crisis waiting to happen, as Governor Kalraj Mishra continues to avoid calling the session of the Rajasthan Legislative Assembly from 31 July onwards.

In response to the Gehlot cabinet’s reiteration on Monday, 27 July of their request for the session to be called, the Governor has now raised additional clarifications and suggestions, including a 21-day notice period before the session, questions about the social distancing methods to be adopted, and whether or not Gehlot plans to call a trust vote.

The problem is, does the Governor of a state have the power to refuse a request for summoning the assembly from their council of ministers, even if they are raising concerns over the COVID-19 pandemic?

From a legal point of view, it appears that they do not. The Governor is granted the power to summon or prorogue the assembly under Article 174 of the Constitution, but as per Article 163, the Governor exercises their powers upon the aid and advice of their council of ministers.

There are at least two significant Supreme Court judgments, in the Shamsher Singh (1974) and Nabam Rebia (2016) cases, which have confirmed that the Governor is bound to follow the aid and advice of the council of ministers when it comes to summoning the assembly.

Therefore, the Governor’s continued intransigence appears to be against settled principles of constitutional law – if he continues to do so, Gehlot and his cabinet would have a strong case against the Governor in the high court or the Supreme Court.

ISSUE 3 - VALIDITY OF THE MERGER OF THE 6 BSP MLAs WITH CONGRESS

Finally, there is the question of those six BSP MLAs who ‘merged’ with the Congress in September 2019. While the petition by the BJP legislator challenging this merger was dismissed by the Rajasthan High Court, the BSP has also issued a whip to the 6 MLAs on 26 July, claiming that they are still bound by their instructions as the merger was not agreed by the national party.

The BSP has instructed the six MLAs to vote against the Gehlot government in any trust vote in the assembly. If they disobey this whip, BSP supremo Mayawati has now said they will be expelled from the BSP, which would cause them to be liable for disqualification as MLAs under the anti-defection law.

However, that is predicated on the whip being legally sound, and that is far from clear, if we look at the anti-defection law.

Paragraph 4 of the Tenth Schedule states that disqualification on grounds of defection does not apply in case of a merger of political parties.

Para 4(2) clarifies what is meant by the term 'merger': "the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger." (emphasis added)

The wording appears to clearly indicate that when deciding whether a merger has taken place, you have to see if 2/3 of the ‘legislature party’ have agreed to join the other political party – not the original party as a whole.

Legislature party is defined in Para 1 of the Tenth Schedule as follows: "the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions".

The legislature party in this case would therefore be the BSP MLAs elected to the Rajasthan Legislative Assembly in 2018. The 2/3 threshold in terms of such MLAs has been met when it comes to the ‘merger’, so the merger does appear to be legally valid.

Crucially, though, there have been no Supreme Court or high court judgments on this specific issue just yet, and there is an argument to be made that the agreement of 2/3 of the legislature party to a merger is just the second requirement for a valid merger. The first requirement is that the original political party (ie, BSP) has to make a decision as a party to merge with the other party (ie Congress), and Mayawati has made it clear that no such decision was made.

She has said that the BSP will take this up in court now as well, which means this legal issue will also continue to be an important one in the political battle as it continues.