Questionnaire related to the Special Leave Petition (SLP) in Supreme Court by CP Joshi against Sachin Pilot in Rajasthan legislative Assembly

Aditya Pratap is a lawyer practicing in the Bombay High Court. He can be reached at aditya@adityapratap.com

Question- Please give a brief introduction of the Rajasthan legislative Assembly.

Answer- The evolution of the House of people’s representatives in Rajasthan has an important place in the constitutional history of India as it was the outcome of the merger of 22 princely States of the former Rajputana with the Union of India. As per the provisions of Article 168 of the newly framed Constitution of India, every state had to establish a legislature consisting of one or two Houses. Rajasthan opted for unicameral character and its legislature is known as the Rajasthan Legislative Assembly.

Question 1- What was the plot of the dispute between CP Joshi and Sachin Pilot?

Answer- The matter arose when Mr. Mahesh Joshi, Chief Whip of the Congress party in Rajasthan Legislative Assembly filed a complaint before the Speaker of that House. This complaint details attempts that have allegedly been made by some MLAs, including Mr. Sachin Pilot to topple the duly elected Congress Government in Rajasthan.

Reportedly, they were abstained from attending the Congress parliamentary party meeting, despite the due notice. It is also mentioned that some of these MLAs appeared on television channels and gave statements against the interest of the ruling party.

Question 2- As a result, what steps were taken by Mr. CP Joshi (15th Speaker of the Rajasthan Legislative Assembly) and Mr. Sachin Pilot (Deputy Chief Minister of Rajasthan and President of the Rajasthan Pradesh Congress Committee)?

Answer- On the matter stated above, Rajasthan Assembly Speaker C.P. Joshi filed a special leave petition (SLP) in the Supreme Court of India against the High Court’s order on defection notices issued by him to Sachin Pilot and 18 other dissident Congress MLAs. Kapil Sibal, lawyer and senior Congress leader, is representing the Speaker in the top court.

Sachin Pilot has also filed a caveat (caveat is a notice seeking that certain actions may not be taken without informing the person who gave the notice) in the Supreme Court to ensure that no orders are passed on Joshi’s petition against High Court interim orders without hearing him and his supporting MLAs.

Question 3- What legal framework supports CP Joshi’s Special Leave Petition?

Answer- So, as to the legal framework, the matter in question arises here is “The dynamics of voluntarily giving up membership of a party” in reference to para 2(1)(a) of Tenth Schedule to the Constitution of India. The 10th Schedule to the Indian Constitution, that is popularly referred to as the ‘Anti-Defection Law’ and has been defined as, “To abandon a position or association, often to join an opposing group”.

If we move to a deeper analysis of the term ‘voluntarily giving up membership of a party’ then it won’t be a synonym of ‘resignation’ and will have a wider connotation. A person may voluntarily give up his membership even though he has not rendered his resignation from the party. Even in the absence of a formal resignation, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.

Question 4- What are some cases where a similar matter in question has arisen before?

Answer- The Supreme Court in Viswanathan v. TN Legislative Assembly held that the deeming fiction under Explanation (a) to para 2(1) of Tenth Schedule must be given full effect. It was quoted that “The act of voluntarily giving up the membership of the political party may be either express or implied. When a person who has been thrown out or expelled from the party which set him up as a candidate and got elected, joins another party, it will certainly amount to his voluntarily giving up the membership of the political party which had set him up as a candidate for election as such member.”

In Ravi S Naik Case, the issue was whether the Speaker of a legislature is bound by the direction of a court. The court cited the case of Kihota Hollohon Case, where it had been said that the, “Speaker while passing an order under the Tenth Schedule functions as a Tribunal. The order passed by him would therefore be subject to judicial review. Any violation of those would be a procedural irregularity. Procedural irregularity is immune from judicial scrutiny.”

Question 5- After referring to all points in question, how would you summarize your view pertaining to the matter?

Answer- The point in question of this matter is the Anti-defection Law that has been criticized on the ground that it denies the fundamental freedom of speech and freedom of action, which includes the freedom to vote, to a legislator because the person is required to abide by the direction issued by his political party.

Dissent should not be considered as defection because a dissenting member or one who does not comply with a particular party directive has neither changed sides, nor crossed the floor; he continues to be a member of his party. Therefore, a difference needs to be made in between ‘defection’ and ‘dissent’. Every dissent does not amount to defection. Thus, it is the contention of the Sachin Pilot’s group that he would continue to be a member of Indian National Congress, even if expelled from the party.

As per the scheme of our Constitution, different organs of the Government function in mutual respect to each other. It is the Speaker who has to decide on the issue of disqualification. We can expect that the Rajasthan High Court will give that opportunity to the Speaker and the Speaker will uphold the majesty of his office by giving an impartial decision on the legal issue.

About the Author – Aditya Pratap

Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.

Cases argued by Aditya Pratap can be viewed here.

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