Three adjournments & amended petition: Here is how Pilot's plea panned out in Rajasthan HC

After the Speaker of the Legislative Assembly at Rajasthan issued show-cause notices to 19 MLAs from the Sachin Pilot camp amidst severe political turmoil in the state, there was much speculation about the next move of the former Deputy Chief Minister. All speculation was put to rest when Pilot, along with 19 of his MLAs, approached the Rajasthan High Court in a petition challenging the disqualification notice issued by the Speaker.

The petition first came up for hearing in the Rajasthan High Court at 3 pm on Thursday before a single-judge bench of Justice Satish Chandra Sharma. At the very outset, senior advocate Harish Salve, representing Pilot and his MLAs sought a short adjournment from the Court to able to amend his petition.

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Why did the petition need to be amended?

The petition first filed before the Rajasthan High Court was taken up by a single judge bench to adjudicate upon the validity of the show-cause notices issued to the Members of the Rajasthan Legislative Assembly. While the members of the Assembly had been served with a disqualification notice, the procedure for disqualification was yet to be completed and no final decision was said to have been taken by the Rajasthan Speaker. 

In light of this, senior advocate Abhishek Manu Singhvi appearing for the Speaker before the High Court, objected to the maintainability of the petition stating that the procedure could not be challenged before a court of law, instead, only the final decision of the Speaker could be questioned. It was then that Harish Salve expressed his desire to challenge the procedure of disqualification itself under the Tenth Schedule of the Constitution of India and sought to amend his petition to include the grounds for the same.

Section 2(1)(a) of the Tenth Schedule of the Constitution gives the power to the Speaker to disqualify any Member of the House who had voluntarily given up the membership of his political party under which he was elected. It was under this provision that the show-cause notice was issued to the MLAs. Soon after the 3 pm hearing, an amended petition was filed before the Rajasthan High Court challenging the validity and constitutionality of Section 2(1)(a) of the Tenth Schedule which has now turned this case into a constitutional question of law.

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Hearing on the amended plea

The second round of hearing took place at 5 pm in which Salve insisted before the same single-judge bench that a question of constitutional importance had to be adjudicated upon by a two-judge bench of the High Court. Justice Satish Chandra Sharma agreed to refer the case to a division bench and allowed for the amended petition to be heard on an urgent basis. Within a couple of hours, the Chief Justice of the Rajasthan High Court constituted a two-judge bench to hear the matter on an urgent basis.

Chief Justice Indrajit Mahanty and Justice Prakash Gupta assembled for a short hearing at 7:45 pm during which Singhvi assured the Court that no action will be taken against the dissenting MLAs at least till 5 pm on Friday. On the basis of this assurance, the bench agreed to adjourn the hearing till 1 pm tomorrow.

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Can the power of the Speaker under Section 2(1)(a) be challenged?

Time and again, the Supreme Court has stated that with due respect to the doctrine of separation of powers, no court of law should interfere in a disqualification process until the final decision is made by the Speaker. With this in mind, it wouldn't be surprising if this is a first of its kind petition before a Court where this specific section is challenged. 

Having said that, it is also important to highlight that the Supreme Court has consistently upheld provisions of the Tenth Schedule of the Constitution in a plethora of cases starting from the landmark case of Kihoto Hollohan vs Zachillhu of 1992 in which the provisions of the 52nd amendment of the Constitution which inserted the Tenth Schedule were analyzed by a Constitution Bench of the top court and upheld. 

It remains to be seen whether the Rajasthan High Court would be willing to go into the question of the constitutionality of Section 2(1)(a) of the Tenth Schedule or if the matter will end up before the Supreme Court now.

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