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Pilot’s plea maintainable, says Rajasthan HC & orders status quo on disqualification notices

The HC agreed to look into Pilot camp’s argument that clause 2(1)(a) of Tenth Schedule violates basic structure of the Constitution. It also made the Centre a party in the case.

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New Delhi: In a setback to the Ashok Gehlot government, the Rajasthan High Court Friday held the petition — filed by Sachin Pilot and 18 ‘rebel’ Congress MLAs against the disqualification notices issued to them — as maintainable and rejected the objections raised by the assembly Speaker to dismiss it at threshold.

The court ordered a status quo in the case until a final decision is taken.

A bench led by Chief Justice Indrajit Mahanty also agreed to look into the Pilot camp’s argument that clause 2(1)(a) of the Tenth Schedule violates the basic structure of the Constitution, and fundamental right of freedom of expression guaranteed under Article 19 (1)(a).

The clause allows the disqualification of a legislator if he or she has “voluntarily given up his membership of a political party” on whose ticket the member wins an election.

Pilot and the ‘rebel’ MLAs have contended that their conduct cannot be construed as “defection” under the law and is simply an act of “dissent”. 

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

Speaker C.P. Joshi argued that the court has no jurisdiction to entertain such a petition at the notice stage and can intervene only after a decision is given on the disqualification petitions.

The court, however, admitted the petition, meaning it would be heard in routine and not taken up as an urgent matter. However, the court gave liberty to the parties to move an application for early hearing.

The court also framed 13 questions on which arguments would be addressed by both sides once the matter is heard at length. 

One of the questions is — Does the speaker’s notice violate the essence of democracy and intend to throttle voices of dissent that seek a leadership change within the party?


Also read: Pay Re 1 and tender apology — Sachin Pilot to Congress MLA who alleged Rs 35 cr bribe offer


Centre admitted as party

In further setback to the Gehlot government, the high court — in a separate order — also impleaded the Union of India as a party in the case.

On an application filed by a rebel Congress MLA, Prithviraj Meena, the court ordered: “In view of the order that we intend to pass today, we are of the considered view that allowing the application for impleadment, in no manner, is prejudicial to the interests of any party.”

While advocate general M.S. Singhvi on behalf of the Speaker posed no opposition to the impleadment application, senior advocate Devdutt Kamat, counsel for Congress chief whip Mahesh Joshi, contested it.

However, Kamat’s objections that the application got listed on the day when the court was set to pronounce the order was ignored.

The court rejected the prayer made by the rebel MLAs to uphold their status as members of the Rajasthan Assembly and the Congress.

Questions framed by the court

As the counsel for Pilot camp vehemently submitted that the Tenth Schedule law and past pronouncements on it are part of an evolutionary process, the court agreed to look into the question of whether it, in the present form, defies the basic structure of the Constitution.

The court will also consider whether the 1992 Supreme Court judgment in Kihoto Hollohan vs Zachillhu and others case tested the constitutionality of clause 2(1)(a) only with the touchstone of “crossing over” or defection. In that case, the court was never called upon to answer, much less the question of intra-party dissent.

The Pilot camp’s assertion that its members’ expression of dissatisfaction or disillusionment would not fall within the scope of Tenth Schedule too would be looked into.

Besides, the court will also examine if ‘whip’ as an instrument of party discipline only applies to actions expected out of legislators inside the House.


Also read: Sachin Pilot is ‘nikamma’, he was only making people fight, says CM Ashok Gehlot


 

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