{"id":232785,"date":"2020-07-24T11:52:28","date_gmt":"2020-07-24T06:22:28","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=232785"},"modified":"2020-07-31T12:05:42","modified_gmt":"2020-07-31T06:35:42","slug":"breaking-rajasthan-hc-directs-status-quo-in-disqualification-notice-against-sachin-pilot-and-18-other-dissident-congress-mlas","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2020\/07\/24\/breaking-rajasthan-hc-directs-status-quo-in-disqualification-notice-against-sachin-pilot-and-18-other-dissident-congress-mlas\/","title":{"rendered":"BREAKING | Rajasthan HC directs ‘status quo’ in disqualification notice against Sachin Pilot & 18 other dissident Congress MLAs"},"content":{"rendered":"

Rajasthan High Court:\u00a0<\/strong>A Division Bench of Indrajit Mahanty, CJ and Prakash Gupta, J., directs ‘status quo’ to be maintained in the case wherein Sachin Pilot, the former deputy Chief Minister of Rajasthan, along with 18 other Congress MLAs, has challenged the disqualification notice issued to them by the Rajasthan Legislative Assembly Speaker asking them to explain anti-party activities.<\/p>\n

Single Judge Bench [Initial Petition]<\/span><\/p>\n

Present petition was listed before the Single Judge Bench of Rajasthan High Court on 16-07-2020 and the in the order pronounced, Court permitted the petitioners to incorporate additional ground regarding the constitutional validity of the provisions of Tenth Schedule of the Constitution of India.<\/p>\n

What lead to the present matter?<\/span><\/p>\n

Assembly Elections in the State of Rajasthan were held on 17-12-2018 and Congress had formed its Government under the Chief Ministership of Ashok Gehlot. Petitioner — 6, Sachin Pilot was appointed as the Deputy chief Minister.<\/p>\n

Being aggrieved in the manner that the Chief Minister was functioning with assertion on the fact that voices of the masses were not being heard by the Chief Minister, petitioner expressed their grievances against the Chief Minister.<\/p>\n

On 13-07-2020, Chief Whip called for a Legislative party meeting without providing for a specific agenda and following the meeting Chief Whip, Congress Legislative Party, Rajasthan Assembly, issued a notice was issued wherein the following was stated:<\/p>\n

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“…in view of the exigencies of the emergent political situation prevailing in the State on account of repeated attempts at defections and to discuss and draw out a political strategy to address the same, another meeting of the Congress Legislative Party is being called at 10.0 AM tomorrow i.e. July 14, 2020 at the Fairmont Hotels and Resorts, 2, RIICO, Kukas, Jaipur.<\/p>\n

You are requested to attend the meeting of the Congress Legislative Party. Any failure to participate without providing valid and adequate reasons in advance in writing to the undersigned, it will be deemed to be clear and categorical evidence of your intention to disassociate from the Indian National Congress and its ideology and will invite action as per the relevant statute and the Constitution of India.”<\/p>\n<\/blockquote>\n

Ploy to threaten the petitioners<\/span><\/p>\n

Chief Minister had ordered an enquiry by the Special Operations gROUP (Rajasthan Police) to investigate the petitioners, which seemed no more than a ploy to threaten the petitioners and the other MLAs from raising their voices against the leadership within the party.<\/span><\/p>\n<\/div>\n<\/div>\n<\/div>\n

On the same day, petitioners were given to understand that they were removed as the Deputy Chief Minister and the State Ministers.<\/p>\n

On 14-07-2020, Chief Whip filed a complaint under Paragraph 2(1)(a) of the Tenth Schedule of the Constitution ofIndia. After which respondent 1 issued a notice against the petitioners seeking their explanation within 2 days.<\/p>\n

Petitioner-6, Sachin Pilot said that the notice issued is bad in law and liable to be quashed.<\/p>\n

Right to Dissent<\/span><\/p>\n

Senior Counsel, Harish Salve<\/strong><\/span> on behalf of the petitioner submitted that the 10th Schedule of the Constitution of India makes provisions as to disqualification of the members of the house of Parliament or legislative Assembly on ground of defection.<\/p>\n

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Paragraph 2(1)(a) of 10th Schedule envisages that a member of a House belonging to any political party shall be disqualified for being a member of the House if he has \u2018voluntarily\u2019 given up his membership of such political party.<\/span><\/p>\n<\/blockquote>\n

Further, adding to its contentions, he added that in the present case, petitioners have not voluntarily given up their membership, hence they have a right to dissent against local leadership and agitate grievances of the people and the said right flows from Article 19(1)(f) of the Constitution of India.<\/p>\n

Malafide Intention<\/span><\/p>\n<\/div>\n<\/div>\n<\/div>\n

Notice given to the petitioner was o disassociate the petitioner from the INC without providing any valid reasons.<\/p>\n

Right of free Speech and Right of Conscience<\/span><\/p>\n

If one protests against working of the Chief Minister in public or private, it is his right of free speech and conscience.<\/p>\n

Notice given in the present case was premature and unconstitutional.<\/p>\n

Speaker not working like an Independent Tribunal | No “Floor crossing”<\/span><\/p>\n

On 14-07-2020, he had issued notice only on the basis of Chief Whip’s complaint.<\/p>\n

Legislature clearly envisaged the need to provide for “floor crossing” on the basis of honest dissent. As many as 19 elected representatives conducted themselves with a particular course of action, which in itself lends credence and reassurance to the presumption of their bonafides.<\/p>\n

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Mere absence of a member of the Legislative Assembly from the meeting of the legislative party ought not to be treated as an act of voluntarily giving up the membership of the political party.<\/p>\n

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\u2018Dissent\u2019 by itself cannot be treated to be \u2018defection\u2019 until and unless the act akin to \u2018floor crossing\u2019 occurs.<\/span><\/p>\n<\/blockquote>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n

Concluding his set of arguments, Senior Counsel, Harish Salve submitted that Court needs to examine in its jurisdiction under Article 226 of the Constitution the width and the scope of Paragraph 2(1)(a) of the Tenth Schedule on the touchstone of the basic structure doctrine, as evolved and as laid down by the Supreme Court from time to time.<\/span><\/p>\n

Senior Counsel, Mukul Rohatgi<\/span><\/strong> relied on the Supreme Court Judgment in\u00a0Supreme Court Advocates-on-Record Assn.v. UOI,\u00a0<\/em>(2016) 5 SCC 1<\/a>, and submitted that,<\/p>\n

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“…if free dissent is construed to give up membership of the political party, it would tantamount to invasion over the right of free speech and expression enshrined in Article 19(1)(a) of the Constitution.”<\/span><\/p>\n<\/blockquote>\n

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Impugned notice is non-speaking, malafide and it also does not speak about the situation to recoup the Chief Minister.<\/p>\n<\/div>\n<\/div>\n<\/div>\n

Decision<\/span><\/h3>\n

Court in view of the above framed the following 13 questions to be considered:<\/p>\n

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