SC to start day-to-day hearings from Monday; high court order will be subject to the outcome of the Speaker’s petition in the top court; bench says ‘Voice of dissent in a democracy cannot be shut down’
The analysis could lead to any direction, but the Sachin Pilot-led Rajasthan Congress dissidents today (July 23) earned major brownie points in the Supreme Court when the bench headed by Justice Arun Mishra dismissed arguments and allowed the Rajasthan High Court to pronounce its judgment as scheduled tomorrow. There was a caveat attached, though. “We are not restraining the high court from passing the order, but it will be subject to the outcome of the petition (of the Speaker) before the Supreme Court,” the bench said.
The other major development was that the top court has decided to hold day-to-day hearings on the matter from Monday (July 27). The fight, therefore, is set to continue for a while.
The apex court was dealing with an SLP filed by Rajasthan Assembly Speaker CP Joshi, questioning the Rajasthan High Court’s jurisdiction over his pronouncements. The high court had requested Joshi to not take any action on the dissident MLAs till its order is passed. Joshi had taken this ‘order’ before the Supreme Court.
The Speaker had issued disqualification notices to the 19 MLAs, and the legislators had taken this to court.
Issues were settled before lunch. Amid all the arguments today, what stood out was one single comment of the bench: “Voice of dissent in a democracy cannot be shut down.” The bench was addressing senior advocate Kapil Sibal, representing the Speaker at the top court.
Technical points
Sibal started arguments today, concentrating on a technical point. He said: “While the Speaker’s decision on disqualification is subject to judicial review, anything that happens before is not.” He explained that the court can interfere after the Speaker’s decision, not while no decision had been taken.
He also added that paragraph 6 of the Tenth Schedule clearly lays down that the decision of the Speaker is final in disqualification proceedings. He also said that all proceedings relating to disqualification should be confined to the House.
At that, Justice Mishra asked: “Can’t a court intervene when the Speaker suspends or disqualifies an MLA, even as the proceedings are pending before the court?”
Sibal said yes, “but only when the Speaker disqualifies or suspends. No writ can lie to challenge any proceedings prior to the disqualification.”
Sibal said the high court order is “in the teeth of the dictum of the Kihoto Hollohan 1992 judgment” and the mandate of the Tenth Schedule. “In Kihoto, a Constitution bench of the Supreme Court expressly held that courts cannot interdict the Speaker from proceeding ahead at early stages.”
He continued: “In this regard, conclusion of the para 110 of the judgment says, ’Judicial review cannot be available at a stage prior to the making of a decision by the Speaker and it would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings.’”
Sticking to this point of technicality, the Speaker’s counsel reiterated that the Kihoto Holohan judgment specifically says courts cannot interfere at the notice stage. There is a finality clause. He said: “There can’t be a protective order at this stage.”
Justice Mishra asked: “Hasn’t the high court also heard on this aspect? What are your grounds of challenge?”
Sibal referred to a recent Supreme Court judgment that asked the Speaker to decide within a reasonable time frame. The 10th Schedule says that a lawmaker can be disqualified from the House “if he has voluntarily given up his membership of such political party” or “if he votes or abstains from voting in such House, contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf without obtaining prior permission of such political party.” But the law can be extended to behaviour / conduct outside the House too, he added.
At that the bench asked: “On what grounds have disqualification been sought here?”
Sibal said: “They didn’t attend party meetings. They are indulging in anti-party activities. They gave interviews, saying that they want a floor test. They are in a hotel in Haryana… At that Sibal read out the notices of disqualification sent by the Speaker to the MLAs.
The bench again asked: “What is the main ground for the disqualification process?”
Sibal said: “They conspired to destabilize a government formed by their own party. They have given statements to the media demanding a trust vote, pulling down the government etc. This amounts to voluntarily giving up membership of the party.”
Voice of dissent
That was when the bench commented: “The voice of dissent cannot be suppressed. In that case democracy will shut down. After all they have been elected by the people. Can they not express their dissent?”
Sibal argued: “But then, they will have to explain. It is the Speaker who will decide, not any court.”
The bench suggested: “It is the matter of just one day. Why can’t you wait?”
Sibal said: “But how can a court direct?”
The bench said: “So, you have a problem only with two words. The order everywhere says ‘request’.”
At that, Senior Advocate Mukul Rohatgi (for the dissidents) pointed out that the Speaker himself had given two letters in the high court, agreeing for deferment of proceedings, but he has not put those letters on record.”
The bench then asked Sibal: “What’s your view on intra-party democracy?”
Sibal said: “It is for them to explain. They should come back and say they were on a vacation and that they were exercising free speech etc.”
The bench asked if a valid whip can be issued to attend a party meeting. “Is a whip valid only for attending assembly or for a meeting outside?”
Sibal said: “This is not a whip. It’s a notice issued by the chief whip of the party.”
The bench said: “So it’s a request to attend the meeting? If someone doesn’t attend the meeting is it grounds for disqualification?”
Sibal said: “I have to decide that. Neither any court nor any other body can decide that. Your Lordships cannot presume that disqualification will be ordered.”
The bench said: “What the Speaker will decide nobody can say.”
Sibal said: “It’s for the Speaker to decide whether not attending meetings outside the house is grounds for disqualification. But it is about a lot more than not attending a meeting. It is about their anti-party activities.”
The bench then said: “Let this matter be heard at length. This will require detailed hearing. Your questions require lengthy hearing.”
Sibal suggested: “So suspend the high court order.”
The bench said: “But that’s what we need to examine.”
Sibal then suggested: “(Then) Transfer the high court petition here.”
The bench said: “Not now.”
Sibal then asked for an order to stay the further proceedings before the high court.
At that the bench sought a response from senior advocate Harish Salve and Rohatgi, both representing the dissidents.
Rohatgi questioned the political overtones of the Speaker. “If the Speaker can himself agree to defer twice, why can’t he wait for another 24 hours?”
The bench said: “These are important questions relating to democracy. How will democracy function? These are very serious issues. We want to hear it.”
The bench asked: “Can we say the order of the high court will be subject to the outcome here?”
Salve agreed to that.
Sibal also said that the Speaker defers in the dignity of the high court and that he won’t pass any order till it is decided here.”
The final order for the day was that the high court judgment would be subject to the final outcome of the Supreme Court orders.
Read the order here;
ROP-dt-23.07.2020– India Legal Bureau