The high court dismissed the petition of Congress MLAs challenging their disqualification and the Supreme Court refusing to give any relief to them.
Sacked Chief Minister Harish Rawat on Monday got a major boost ahead of the confidence vote in the Uttarakhand assembly on Tuesday with the high court dismissing the petition of nine Congress MLAs challenging their disqualification and the Supreme Court refusing to give any relief to them.
It is advantage Rawat as Justice U C Dhyani of the high court dismissed two writ petitions filed by the rebel Congress MLAs against the Speaker’s action, holding that by their conduct the lawmakers have “voluntarily given up membership of their political party”, a ground for disqualification under the anti-defection law.
“This court, subject to scrutiny of Speaker’s action on the principles of natural justice, therefore, holds that the ingredients of paragraph 2 (1) (a) of the Tenth Schedule of the Constitution are met against the petitioners.
“By their conduct, it has been established that they have ‘voluntarily given up membership of their political party’, even if they have not become members of any other political party,” Justice U C Dhyani said in his 57-page judgment.
After excluding the nine disqualified MLAs, the assembly has an effective strength of 61 members. Of that, the Congress has 27 MLAs on its own and claims the backing of six-member Progressive Democratic Front to make the ruling side’s figure of 33. Rawat needs the backing of 31 MLAs for a simple majority.
The Bharatiya Janata Party has 28 MLAs, including that of Bhim Lal Arya whose loyalty is in doubt. The PDF comprises two of Bahujan Samaj Party, one of Uttarakhand Kranti Dal and three Independents.
The high court judgment referred to the joint memorandum signed by the nine MLAs along with the BJP legislators and given to the Governor on March 18 and said dissent is not defection and the Tenth Schedule while recognising dissent prohibits defection.
“The instant case is an illustration of the fact that the petitioners have not only deserted the leader and deserted the government, but under the garb of dissent, they have, by their conduct, deserted the party, otherwise they would not have said in the joint memorandum that they voted against the Appropriation Bill, it was not passed, the government is in minority and, therefore, the Cabinet of Harish Rawat be dismissed.
“There is a thin line of difference between deserting the leader/government and deserting the party. Dissent is permissible only so long as it does not tread into the realm of ‘voluntarily relinquishing the membership of the party’.
“If dissent is permitted to unfathomable limit, then it will amount to deserting the party and would also tantamount to ‘voluntarily giving up his membership of such political party’ under Paragraph 2(1)(a) of the Tenth Schedule,” Justice Dhyani said.
Shortly after the high court verdict, the MLAs moved the Supreme Court challenging the order and sought an immediate relief of being allowed to participate in Tuesday’s floor test in the assembly.
“The prayer for interim relief (for stay of the HC judgment) can be considered on the date of next hearing,” an apex court bench comprising Justices Dipak Mishra and Shiva Kirti Singh said while fixing the matter for hearing on July 12. It issued notice to Speaker Govind Singh Kunjwal, who had disqualified the MLAs.
Justice Dhyani his order will not come in the way of the affected MLAs to approach the Speaker for a review of his action.
Earlier, Counsel for the disqualified MLAs, C A Sundaram, mentioned the matter before Chief Justice of India T S Thakur about the high court verdict that had come earlier in the day. The CJI asked the counsel to approach the bench which had on Friday ordered the floor test.
The bench of Justice Mishra and Justice Singh allowed the Centre’s plea for modification of its Friday order appointing the principal secretary (legislative assembly and parliamentary affairs) of Uttarakhand government to oversee conduct of the floor test on Tuesday.
Ordering a floor test on May 10 in the assembly, the Supreme Court had said “if they (disqualified MLAs) have the same status” at the time of vote of confidence, they cannot participate in the House.
A specially convened two-hour-long session during which the President’s Rule will be kept in abeyance will be held between 11 am and 1 pm for a “single agenda” of floor test, a bench of Justices Dipak Misra and Shiva Kirti Singh had said.
