Hyderabad: Supreme Court and Rajasthan High Court’s decision to allow rebel Congress MLAs to challenge the Speaker’s power to issue notice for disqualification causes concerns as the issue was already settled by a five-judge Constitutional Bench of the Supreme Court 28 years ago, says an expert on constitutional matters.
In an exclusive interaction with ETV Bharat, PDT Achary, former secretary-general of Lok Sabha, says in the present case, Rajasthan High Court and Supreme Court decided to hear the plea of rebel Congress MLAs challenging the power of the Speaker to issue notice to them after they refused to join a party meeting.
On July 15, Rajasthan assembly speaker CP Joshi issued notice to former deputy chief minister Sachin Pilot and 18 Congress MLAs after they defied the party’s instruction to join a party meeting in Jaipur that was called to enlist the support for the Ashok Gehlot government.
“Speaker issues notice as per the rules, these rules have been framed under the 10th schedule and approved by Parliament. Under this rule, the petitioner has to satisfy the reasonableness of ground and not the speaker,” PDT Achary said.
Achary says the Speaker’s power to issue notice to rebel legislatures has already been upheld by a five-judge Constitutional bench of the Supreme Court in Kihoto Hollohan case in 1992 where the top court upheld that judicial review can take place only after the Speaker’s decision and courts cannot intervene before that.
“The law was settled in 1992 that there cannot be a judicial intervention of the action by the speaker before he takes a final decision on merit,” Achary told ETV Bharat.
In Rajasthan, the High Court has ordered the status quo, which effectively stalled any action against the rebel Congress MLAs of Sachin Pilot camp by the Speaker for time being.
In yet another relief, the Rajasthan High Court also allowed Sachin Pilot’s plea to allow the Union government to become a party in the case as the matter deals with important Constitutional provisions pertaining to the Anti-Defection Law of 1985.
“It means you can challenge the issue of notice by the speaker, challenge the constitutionality of the notice itself,” Achary said while commenting on the High Court’s decision.
Disqualification under the anti-defection law
Achary says under the law, a notice for disqualification can be issued on two grounds. First, if a legislator has defied the party whip in the house. The second ground is if a member has voluntarily given up the membership of the party.
“The ground of voluntarily giving up the membership of the party has not been defined in the law but the Supreme Court has explained it in many cases,” said the former secretary general of the Lok Sabha.
Also read: Rajasthan turmoil: CM Gehlot likely to meet Governor at 2 pm today
“In one case, the SC said that a member going to the governor with some opposition members and requesting the governor to dismiss his own government is a proof enough that he has voluntarily given his membership of the party,” Achari explained adding that just one action on the part of the member was treated as enough evidence.
How Speaker issues notice for disqualification
Achary says once a petition for disqualification of a member has been moved then the speaker issues notice to the member as per the rules.
“One of the rules says the petitioner has to satisfy himself that the ground he has cited for seeking the disqualification of a member is reasonable. The onus is on the petitioner to satisfy himself on the reasonableness of his petition and not on the Speaker,” he said.
Then the issue will be decided by the Speaker after getting the reply from the member and also after hearing both the parties. It also involves an examination of all the documentary evidence.
Speaker will also give them a personal hearing, all these are the requirements of the law. Only after all this, Speaker will decide the case, explained PDT Achary.
Achary says once a Speaker has given its decision only then the Court can review it and it is up to the court to strike it down or uphold it.
Will Supreme Court review the scope of anti-defection law?
While hearing a petition moved by Rajasthan assembly speaker CP Joshi, a three-judge bench of the Supreme Court this week said that it would like to hear the matter in detail.
The top court also refused to restrain the Rajasthan High Court from passing any order in the plea moved by the rebel Congress MLAs led by Sachin Pilot.
“So far widening the scope of this issue is concerned that poses some concerns because a matter which was settled by a Constitutional Bench of Supreme Court in 1992 is being reopened, first by the High Court and then by a three-judge bench of the Supreme Court,” Achary said.
“Maybe they will refer it to a larger bench than the bench which settled this law. That is possible. That was a five-judge bench, maybe they will refer it to a seven-judge bench that is possible,” he added.
“This is a matter which is going to be settled by the Supreme Court because no other authority can go into this except the court itself.”
Governor’s power under Article 174
Also read: BJP welcomes Rajasthan High Court's 'status quo' order
Meanwhile, the political crisis in Rajasthan has deepened as Ashok Gehlot Friday asked Governor Kalraj Mishra to convene the assembly session to prove his majority.
“Under Article 174, governor summons the house, but the governor summons the house at the advice of the council of ministers. In our constitutional scheme of things, the governor is not an independent authority,” Achary said.
According to reports, Governor Kalraj Mishra has not accepted the state government’s recommendation and referred the matter to Rajasthan’s Parliamentary Affairs Department as no specific date for convening the session was mentioned in the official communication and also there was no mention of formal approval by the state cabinet.
