With BJP, 9 Cong MLAs posed as alternative govt: HC told

Rejecting the their claim that they were still in the party, the Congress Chief whip today told the Uttarakhand High Court that the nine rebel MLAs had "in one voice" with the BJP legislators told the Governor that the Harish Rawat government was in minority and presented themselves as an alternative regime.
The submission was made before Justice U C Dhyani by advocate Amit Sibal, appearing for the Chief whip, who further argued that the nine were "paraded" before the Governor to show the "new majority".
The judge was hearing the petition by 9 Congress MLAs who were disqualified by Assembly Speaker Govind Singh Kunjwal under the anti-defection law.

"Through the letter of March 18 morning and later the appearance in person of all the 35, they were presenting themselves to the Governor as an alternative government. They (the nine) need not have gone in person, yet they were paraded. Why would they go in person if not to show that they constitute a new majority.
"The joint memorandum was submitted on the letter head of Leader of Opposition Ajay Bhatt signed by all 35. It shows that the nine Congress MLAs were speaking in one voice with the 26 BJP MLAs," Sibal argued.
He also contended that the nine were "hell bent" on seeking dismissal of the government by "whatever it takes", be it "making false statements" or "suppression of documents".

He also said that though the dissident Congress MLAs say that they are willing to support another Congress government under another CM, this is not said in the memorandum to Governor and as it was a joint memo, the BJP MLAs would never say that.

Sibal further said, "Money bill or no money bill, on the morning of March 18 they told the Governor that the Congress government was in minority and that it was carrying on unconstitutionally. Therefore, their stand is clear and unequivocal."
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The Chief whip, who is also the complainant on whose plea the nine MLAs were disqualified, has also said that unlike what was claimed in court, the joint memo to the Governor by the 35 MLAs (26 BJP and nine Congress) did not contain a single criticism against the Chief Minister.

"Not a whisper of criticism of Chief Minister in the letter. What is the criticism of CM? It is not there on record. Their whole petition is based on the oral submission that they were criticising the CM," he said.
Sibal said the government or the CM can be criticised without bringing down the government and added that a person need not "join" an opposite party. "Crossing floor of the house is enough," he said.
In response to the nine MLAs argument that they had differentiated themselves from the 26 BJP MLAs in the memo to Governor, Sibal said that the "break up" was given only to show how they have managed the majority of 35.

"Break-up shown to seek dismissal of the government," he argued.
"They are Congress in name only. It is only a fig leaf. It is only a pad against the bouncers that Constitution may bowl at them," Sibal said regarding the nine dissident MLAs.
Regarding the argument on behalf of the nine MLAs, that they approached the Governor only to seek a right to vote, Sibal said,"the memo/letter does not seek right to vote from Governor. It seeks dismissal of government of their party".
On whether the Yeddyurappa case applies to this matter as claimed by the dissident Congress MLAs, the Chief whip's counsel said,"they are trying to put a square peg in a round hole".

"In Yeddyurappa case, the BJP MLAs in their letter had levelled several criticisms against the CM and they had also said they do not want to bring the government of their party down. They only wanted a different CM. So facts are unique and different from that of this case," Sibal said.
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On the nine MLAs' argument that the Speaker passed the order of disqualification in "undue haste" and that natural justice was denied to them, Sibal said the apex court in various judgements has held that Speaker ought to complete disqualification proceedings expeditiously.
On the issue of denial of natural justice, he said that the nine were given full seven days by the Speaker to reply to the complaint seeking their disqualification.

He also said the complaint against the nine MLAs was made on March 19 before the Governor on March 23 fixed March 28 (as the outer limit) for the floor test.
The counsel contended that the nine "deliberately" tried to delay the proceedings before the Speaker and alleged "gross suppression of material facts" by them.
After arguments were concluded on behalf of the Chief whip, senior advocate Kapil Sibal addressed arguments on behalf of the Speaker.
On the complaint against Speaker's "undue haste", senior counsel Kapil Sibal said the Speaker could have either disqualified the nine or held them as qualified for voting in the floor test on March 28.

"Had the order come after March 28 saying they were qualified, then no prejudice would have been caused to anyone. But if the order had come after March 28 saying they were disqualified, then disqualification would be with effect from March 18 and in this situation irreparable damage would have been caused," he said.
Regarding the contention of the nine Congress MLAs that the Speaker being a quasi-judicial body ought not to have come to the court defending his order, Kapil Sibal said,"if mala fide is alleged against the Speaker, then he has to be made a party and he is entitled to defend his order".

On whether the nine by their conduct voluntarily gave up their party membership, he said,"voluntarily giving up party membership has to be seen as per the conduct of the delinquent (party member) in each case. It depends on facts of each case. No case law or judicial precedent can be cited for that as human situation would be entirely different in each case".
He said that the dissident Congress MLAs will have to show how their "present intention", that they have not left the party, can be justified by the joint memo which shows they were allegedly "conspiring" with the opposition to bring down the government.

Kapil Sibal also said that the most important policy for the government is its budget and added that "how can a member of Congress party who voted for demands for grants can later oppose the appropriation bill unless they want to bring down the government".
Kapil Sibal concluded his arguments on behalf of the Speaker and the matter has been listed for further hearing on April 28 when arguments would be delivered on behalf of the dissident Congress MLAs.