Jaipur: Amid the political crisis within the Congress’s Rajasthan unit last month, the merger of six Bahujan Samaj Party (BSP) MLAs into the Congress last year was challenged before the Jaipur bench of the Rajasthan high court by Bharatiya Janta Party (BJP) MLA Madan Dilawar, BSP national secretary Satish Mishra and BSP state president Bhagwan Singh Baba.
The six MLAs – Sandeep Yadav, Wajib Ali, Deepchand Kheria, Lakhan Meena, Jogendra Awana and Rajendra Gudha – were elected on the tickets issued by the BSP. On September 16, 2019, they moved an application before Rajasthan assembly speaker C.P. Joshi claiming that the BSP was merging with the Congress. Joshi, in an order dated September 18, 2019, accepted the merger.
On March 6 this year, Dilawar filed a petition seeking the disqualification of these six MLAs, alleging defection. However, Joshi rejected this petition on July 22.
Through two different writ petitions, one by Mishra and Baba and another by Dilawar, Joshi’s order allowing the merger was challenged before the single-judge bench of Justice Mahendra Kumar Goyal at the Rajasthan high court. In addition, Dilawar also challenged Joshi’s July order rejecting his disqualification petition against the six BSP MLAs.
On August 24, the Rajasthan high court announced its verdict in the case. It held that the merger allowed by Joshi does not fall under the category of a “decision”.
It reasoned, “The Speaker acquires jurisdiction to adjudicate upon the claim of merger only while considering the plea of disqualification and not otherwise, therefore, the order dated September 18, 2019 cannot be held to be the decision on the claim of merger by the six BSP MLAs.”
It further added that “decision” implies conflict of facts or law or both where a verdict is set out through judicial process by an independent and competent final authority; however, the speaker allowing claim of merger by the six BSP MLAs cannot be called a as “decision”.
“The order does not decide any of the rival claims of the parties and cannot be treated as an adjudication on the claim of merger. It simply records the claim of the merger of BSP with the Congress presented by the six BSP MLAs. The speaker being a non-partisan person, is not expected, in our constitutional scheme, to conduct any further inquiry at the time of recording claim of merger for the administrative purposes, in absence of any plea of disqualification,” the high court stated.
It, therefore, said that Joshi’s order allowing the merger was an administrative order under the Rajasthan Assembly Members (Disqualification on the Grounds of Defection) Rules of 1989, that has immunity under Article 212 of the Constitution. (The Article prohibits the validity of any proceedings in legislature from being called into question in a court merely on the ground of irregularity of procedure.)
Referring to Kihoto Hollohan vs Zachillhu And Others, it said, “The Court acquires jurisdiction to put such adjudication to judicial review only on the infirmities based on violation of constitutional mandate, mala fides, non compliance with rules of natural justice and perversity. Judicial review should not cover any stage prior to the making of a decision by the Speaker or a Chairman.”
The court said that there exists no such exceptional circumstance in the present case for the court to interfere in the order allowing merger.
“Since the order dated September 18, 2019 has been held to be an administrative order and not an order under paragraph 4 of the Tenth Schedule (that deals with exemption to disqualification in case of merger), this Court refrains itself from venturing into the question of its validity qua the parameters laid down therein,” the court recorded.
It further held that the court does not have jurisdiction to declare the six BSP MLAs disqualified. This decision rests only with the speaker, under the Tenth Schedule of the Constitution.
The court dismissed the writ petition filed by BSP national secretary Satish Mishra and state president Bhagwan Singh Baba.
However, it allowed the petitioner to file a disqualification petition with the Speaker raising plea of defection of the six BSP MLAs. “If any such (disqualification) petition is filed, the Speaker is expected to decide the same in accordance with law without rejecting it under Rule 6(2) of the Rajasthan Assembly Members (Disqualification on the Grounds of Defection) Rules of 1989,” the court stated.
On the question of Joshi rejecting Dilawar’s disqualification petition against the six BSP MLAs through its July order, the court quashed and set aside the order and held, “Once, the factum of alleged defection was brought to the notice of the Speaker, he was under the constitutional obligation to adjudicate upon the same.”
It further stated that the speaker is expected to take a decision on the disqualification petition filed by Dilawar within the period of three months.
The single-judge bench of Justice Mahendra Kumar Goyal had earlier refused to stay the participation of these BSP MLAs in the assembly as Congress legislators, but issued notices to the speaker, the assembly secretary and six MLAs seeking their response in its hearing on August 11.
Not satisfied with the decision of the single-judge bench, the petitioners moved an appeal to the division bench of Rajasthan high court against the order of the single-judge bench. However, the division bench of Chief Justice Indrajit Mahanty and Justice Prakash Gupta dismissed their appeal.
On August 8, the BSP MLAs had moved the Supreme Court urging transfer of the petition seeking their disqualification pending in the Rajasthan high court to the apex court.
In their petition, they submitted that similar matters pertaining to the interpretation of paragraph 4 of the Tenth Schedule of the Constitution (dealing with exceptions to disqualification in case of merger), are already pending before the Supreme Court.
“There is an urgent need to clarify the law in respect of the scope of Paragraph 4 of the Tenth Schedule to ensure that there are no conflicting judgments,” their plea had stated.