The Supreme Court on Thursday declined to stay a September 2019 decision by Rajasthan assembly speaker CP Joshi allowing the merger of six MLAs elected on the Bahujan Samaj Party (BSP) ticket with the Congress party. The move should come as a shot in the arm of the state’s Congress government, which is still recovering from an internal revolt that is on the way to being resolved and which faces a no-confidence motion by the opposition when the assembly session starts on Friday.
A three-judge bench headed by justice Arun Mishra said that the issue regarding the validity of the speaker’s decision is pending before a single-judge bench of Rajasthan high court, and declined to grant interim relief to the petitioner, Bharatiya Janata Party (BJP) MLA Madan Dilawar, who sought disqualification of the six BSP MLAs for defection.
“We are not inclined to grant any interim relief,” said the bench, which also comprised justices BR Gavai and Krishna Murari.
The top court adjourned the case until Monday after senior counsel Kapil Sibal, appearing on behalf of the speaker, said the agenda for the Rajasthan assembly session will be decided at 10 am on Friday, and also submitted that the opposition is free to move a no-confidence motion.
“They have not moved a no-confidence motion. They can do that anytime,” he said.
The decision on the no-confidence motion had not been taken at the time of the hearing.
Senior counsel Harish Salve, appearing for Dilawar, sought a stay on the speaker’s decision, stating that if a no- confidence motion ensues, then the BSP and Congress party will issue whips and there will be uncertainty on whose whip will hold good with respect to the six MLAs.
“If the speaker’s decision is later struck down by the high court, then the six MLAs, in order to escape disqualification, can claim that the speaker’s decision was in force at the time when they voted (against the BSP party whip),” Salve said.
“Court cannot pass orders based on what may or may not happen in the house,” Sibal responded.
Dilawar moved the Rajasthan high court on July 28, seeking disqualification of the six former BSP legislators on grounds of defection under 10th schedule of the Constitution.
The six MLAs — Lakhan Singh, Rajender Singh Guda, Deepchand, Joginder Singh Avana, Sandeep Kumar and Vajib Ali — were elected to the Rajasthan assembly in December 2018 on a BSP ticket. They later submitted a joint application to the assembly speaker on their unanimous decision to merge with the Congress party on September 16, 2019. The request was approved by the speaker on September 18, 2019.
This was challenged by Dilawar, who filed a plea before speaker in March 2020 for disqualification of the six MLAs for defection.
The 10th Schedule of the Constitution of India contains provisions relating to disqualification of lawmakers for defection. One of the grounds for disqualification, as per paragraph 2 of the 10th schedule, is voluntarily giving up membership of the political party on whose ticket the lawmaker is elected.
The speaker rejected Dilawar’s plea on July 22 after which the latter approached the high court challenging the speaker’s decision. A single-judge bench of the high court issued notice to the speaker on July 30, but declined to stay the decision. A division bench of the high court also declined to grant a stay and requested the single-judge bench to hear and dispose of the matter within one day.
Dilawar then approached Supreme Court seeking a stay on speaker’s order.
“When the Rajasthan high court is hearing the matter, how can we pass an order? ” justice Mishra asked Salve.
Archana Sharma, the Rajasthan Congress spokesperson, said the merger of BSP MLAs with the Congress was legally valid and there was no ambiguity on that. “We welcome the SC direction,” she said.
The hearing of the case will continue before the Rajasthan high court on Friday.
Petitioner Dilawar’s lawyer Ashish Sharma said they would wait for the Rajasthan high court’s verdict, expected on Friday, to decide on the next course of action. “The arguments are expected to the completed on Friday and our next course of action will depend on the court’s order,” he said.