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Legal Development In Rajasthan-The Whip And The Pilot

A Case Of Aaya Ram Gaya Ram?

The dispensation in Rajasthan has not even completed two years in power when its stability is at stake. Several reports and briefings convey that Gehlot-Pilot had several scrimmages, with the former accusing the latter of being close to the BJP whereas the latter alleging belittling his authority and sidelining him notwithstanding the effort put in by him for assembly polls.

The picture in the state is murky and the triggering point for Pilot plausibly was the notice sent by Special Operations Group (SOG) which indicted him of seditious activities to topple the government. He was undoubtedly humiliated and harassed but the number game is not that easy as it was in Jyotiraditya Scindia's M.P. 

The party had expelled Pilot (and a few others) after issuing a ‘whip', a concept inherited from Britain meaning “whipping in” of legislators to follow the party line, which was not honoured, though mouthpieces of the party claimed that he could still return back. 

Amid all this, the speaker, CP Joshi, an ex-Congressman (before he became speaker), issued the show-cause notices to 19 MLAs including Pilot as a consequence of defying the whip and after a petition was filed for disqualification before him providing 2 days time to respond instead of statutory 7 days (Ravi S Naik v. UoI, the SC held that time as a matter of rule could be defied if the developments were fast).

Undoubtedly it was his constitutional duty to act on the petition, vide Rajendra Singh Rana v. Swami Prasad Maurya and he followed. As the convention goes, the decision ought to rest upon the speaker who acts as an ad hoc tribunal to decide the fate of the MLAs and they would perhaps be disqualified by him subsequent to which they would have knocked the doors of the High Court vide Ravi S Naik v. UoI for judicial review. 

On the contrary, things did not happen that way and the Pilot camp without loss of time and before the stipulated time given by the speaker approached the High Court with the disqualification notice of the speaker itself. The petition mentions mala fide intent on part of the speaker (like the reduction of the stipulated time for the reply; complaint being dealt with, without recording reasons and; haste and partisan attitude of the speaker in a nutshell) and no locus standi of the whip to prove allegiance to the party and therefore a case not falling under the ambit of tenth schedule.

The constitution provides Tenth schedule as a ground for disqualification in A.191(2) vide 52nd Constitutional Amendment Act of 1985 after notorious political horse-trading of Haryana in the late 60s known by the phrase Aaya Ram, Gaya Ram (which had shattered constitutional morality to its lowest).

Whereas Paragraph 2(1)(a) of anti-defection law (Tenth Schedule of Constitution) talks of voluntarily giving up the membership and the Congress Chief whip argues before the court that the act of the legislative members is to be inferred from their conduct (which need not be express like joining another party or forming a new one as was held in Viswanathan v. Speaker of TN Legislative Assembly, 1996) and hence the suspension of the Congress MLAs was legitimate.

This para is contested by the petitioners on the touchstone of freedom of expression in general under A.19(1)(a) and privileges of legislators under A.194 in particular.

Whereas Paragraph 2(1)(b) of anti-defection law (Tenth Schedule of Constitution) provides for a lawmaker's disqualification “if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs”. Reading this in conjunction with the  relevant para of Kihota Hollohan v. Zachilhu (AIR 1993 SC 412) ruling, 

“disqualification under paragraph 2(1)(b), would have to be limited to a vote on motion of confidence or no confidence in the Government or where the motion under consideration relates to a matter which was an integral policy and programme of the political party on the basis of which it approached the electorate (emphasis supplied).

The voting or abstinence from voting by a member against the direction by the political party on such a motion would amount to the disapproval of the programme of the basis of which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate.”

Conventionally speaking, the whip has to be honoured by the member but how far it was legal to summon the members given the fact that it was perhaps not meant for ‘vote of confidence'. 

It is also worth mentioning that the Law Commission in its 170th report of 1999 had recommended that whip should be issued only when the government is in danger and in a way broadened the ambit of A.194 which talks of privileges of legislators against A.191(2) which in a way restricts it. 

Therefore the High court would have to interpret the grey areas in the tenth schedule and decide upon the legality of the whip in light of the fact that by omitting the party whip did Pilot breach the trust of the people or disapprove the programme of the party as such or was speaker action colourable exercise of power and excess of jurisdiction. Certainly the aggrieved would approach the apex court once this ruling is out and this would add to the constitutional interpretation further shaping Indian polity.  

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