Himachal Pradesh Legislative Assembly: In a petition filed under the Tenth Schedule of the Constitution seeking disqualification of Respondents 1-6 (‘the respondents’), Kuldeep Singh Pathania, Speaker*, opined that if an elected legislator was allowed to openly act contrary to the interest of the elected government formed by his/her original political party in matters related to proceedings of the House, and such proceedings under the Tenth Schedule of the Constitution were allowed to prolonged with the procedural requirements, then the whole efficacy of the Tenth Schedule of the Constitution would be lost. Himachal Pradesh Legislative Assembly (‘Legislative Assembly’) opined that as the nature of the legislative business scheduled on 27-02-2024 and 28-02-2024 was of utmost importance, it could not be opposed that the action of absence during voting, after cross-voting in the morning by the respondents, demonstrated that the respondents had no allegiance to their political party.
Consequently, the Legislative Assembly held that the respondents had incurred disqualification under Para 2(1)(a) of the Tenth Schedule of the Constitution and declared that they were ceased to be the members of the Himachal Pradesh Legislative Assembly with immediate effect.
Background
In the present case, the petitioner and the respondents, were members of the Himachal Pradesh Legislative Assembly, who were elected on the ticket of the Indian National Congress (‘the Congress’). It was widely reported in the news that six MLAs belonging to the Congress had cross-voted in the Rajya Sabha elections and had left the State of Himachal Pradesh. It was also widely reported that the future of the elected government in Himachal Pradesh was uncertain due to the rapidly evolving situation. The petitioner contended that the respondents by their conduct on 27-02-2024 became liable for disqualification under Para 2(1)(a) and Para 2(1)(b) of the Tenth Schedule of the Constitution, and thus filed the present disqualification petition.
Analysis, Law, and Decision
The Legislative Assembly noted that broadly following two main grounds had been urged in support of the disqualification petition:
A. Cross-voting by the respondents in Rajya Sabha elections
The Legislative Assembly opined that it was undisputable that the candidate set-up by Congress secured thirty-four votes, while the candidate set- up by the BJP also secured thirty-four votes including votes of three independents. Thus, it was a matter of official record that six Congress MLAs cross-voted in Rajya Sabha election.
The Legislative Assembly opined that it was more in agreement with Shailesh Manubhai Parmar v. Election Commission of India, (2018) 9 SCC 100, that the blanket non-application of the Tenth Schedule of the Constitution to Rajya Sabha elections would be plainly against the letter and spirit of the democratic foundations of the Constitution. The Legislative Assembly opined that neither the textual interpretation, nor the contextual interpretation gave any indication that a Rajya Sabha election was excluded from the purview of operation of the Tenth Schedule of the Constitution.
However, the view laid down in Kuldip Nayar v. Union of India, (2006) 7 SCC 1 was by a larger bench, thus, the Legislative Assembly relied on Kuldip Nayar v. Union of India, (2006) 7 SCC 1 and opined that even though the importance of party discipline was emphasized, that the legislators were bound to follow the party line even in Rajya Sabha elections, it held that a legislator would not face disqualification for voting in a particular manner.
Therefore, the Legislative Assembly held that the act of cross voting by the respondents in the Rajya Sabha elections on 27-02-2024 did not attract disqualification under para 2(1)(b) of the Tenth Schedule of the Constitution.
B. Absence from the house during consideration and voting on legislative business of budget estimates for the demand of grants
The Legislative Assembly opined it was well settled by parliamentary convention that the legislative business regarding the financial bills and demand for grants was crucial business on which the government’s right to continue was hinged. Therefore, even if it was assumed that the respondents had not received the whip issued on 15-02-2023, the respondents being MLAs elected on the ticket of the Congress were duty bound to support the government formed by their political party in consideration and voting on the budget.
The Legislative Assembly opined that in voting on critical matters like budget, the elected MLAs of a party could not be permitted to hide behind procedural technicalities, such as proof of service of whip. An elected legislator having been elected to the house on the platform of political party, was bound to support the party in budget voting, and their act of absenting from the House when discussions and voting took place was a clear indication of their giving up membership of the party.
The Legislative Assembly opined that if an elected legislator was allowed to openly act contrary to the interest of the elected government formed by his/her original political party in matters related to proceedings of the House, and proceedings under the Tenth Schedule of the Constitution were allowed to prolonged with the procedural requirements, then the whole efficacy of the Tenth Schedule of the Constitution would be lost.
The Legislative Assembly opined that as the nature of the legislative business scheduled on 27-02-2024 and 28-02-2024 was of utmost importance, it could not be opposed that the action of absence during voting, after cross-voting in the morning by the respondents, demonstrated that the respondents had no allegiance to their political party. Therefore, the Legislative Assembly applied the principles laid down in Ravi S. Naik v. Union of India, 1994 Supp (2) SCC 641 and Subhash Desai v. State of Maharashtra, 2023 SCC OnLine SC 607, and opined that the respondents had conducted themselves in a manner which leads to an unmistakable inference that they had voluntarily given up membership of their original party, that is the Congress.
Consequently, the Legislative Assembly held that the respondents had incurred disqualification under Para 2(1)(a) of the Tenth Schedule of the Constitution and declared that the respondents were ceased to be the members of the Himachal Pradesh Legislative Assembly with immediate effect.
[Harshwardhan Chauhan v. Chaitanya Sharma, Disqualification Petition No. 112-117 of 2024, decided on 29-02-2024]
*Judgment authored by- Speaker Kuldeep Singh Pathania
Advocates who appeared in this case :
For the Petitioner: Devadatt Kamat, Senior Advocate with Harsh Pandey and Revanta Solanki, Advocates.
For the Respondents: Satya Pal Jain, Senior Advocate with Anshul Bansal and Ajay Vaidya, Advocates.
