Courts can’t interfere before Speaker decides on disqualification, says Singhvi in Rajasthan HC

Advocate Abhishek Manu Singhvi made the submission in court, which was hearing a plea filed by ‘rebel’ Congress leader Sachin Pilot & 18 others, challenging their disqualification.

Senior advocate Abhishek Manu Singhvi | YouTube screengrab

New Delhi: The disqualification notices issued by Rajsthan assembly Speaker C.P. Joshi cannot be challenged and he needs to take a decision first before the courts can interfere, senior advocate Abhishek Manu Singhvi argued in the high court Monday. 

The submission was made before a bench comprising Justice Indrajit Mahanty and Justice Prashant Gupta, with Singhvi arguing on behalf of Joshi.

The Rajasthan High Court was hearing a petition filed by former state deputy chief minister Sachin Pilot and 18 other ‘rebel’ Congress MLAs, challenging the disqualification notices served to them by the Speaker last week.

Pilot and the MLAs moved the high court last week, claiming that the disqualification notices issued to them by Joshi were an attempt to stifle their voices, which sought a leadership change within the party in the “most democratic manner”. They had challenged the correctness and validity of the notices.

They had also challenged the Constitutional validity of para 2(1)(a) of the Tenth Schedule, which is the anti-defection law. This provision allows disqualification of a legislator on the ground that he has “voluntarily given up his membership of such political party”.

On Monday, Singhvi argued against the maintainability of the petition.

He cited the January 2020 judgment, in which the Supreme Court had refused to take a call on the disqualification of 7 Congress MLAs in Manipur assembly, who had allegedly defected to the BJP. The court had asserted that it is for the Speaker to decide the proceedings under the Tenth Schedule. 

‘Members’ freedom of speech not absolute’

As for the challenge to Constitutional validity of the Tenth Schedule, Singhvi submitted that its validity has already been upheld by the Supreme Court in 1992.

He cited the landmark case, Kihoto Hollohan v. Zachillhu And Others, and said that the Supreme Court had held in the case that freedom of speech of a member is not absolute freedom.

In his plea, Pilot had submitted that the phrase “voluntarily giving up membership” cannot be construed so widely to include even expression of dissatisfaction against party leadership. He has contended that this would jeopardise the fundamental freedom of speech and expression of a member.

“Mere expression of dissatisfaction or even disillusionment against the party leadership cannot be treated to be conduct falling within the clause 2(1)(a) of the 10th Schedule of the Constitution of India,” his petition had stated.

Singhvi, however, cited Supreme Court judgments to submit that for a member to “voluntarily give up his membership”, it is not necessary for him to resign, and that this can be inferred from his conduct.

He then submitted that not attending party meetings can be construed as giving up party membership.

In their petitions, Pilot and the other MLAs had pointed out that they were given only 2 days time to respond to the Speaker’s notice, despite the fact that Rajasthan Assembly (Disqualification) Rules mandate that the Speaker should give 7 days’ notice.

But Singhvi has now argued that it is for the Speaker to regulate the procedure. In any case, he said, now the petitioners have got seven days time to respond, as the high court had last Friday said that no proceedings should be initiated against Pilot until 21 July.