 "Harish Rawat, Uttarakhand")
Uttarakhand High Court Tuesday dismissed the petition of nine rebel Congress MLAs challenging their disqualification, holding that by their conduct they have "voluntarily given up membership of their political party", implying that they can be disqualified on that ground.
"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 judgement.
He was giving a verdict on the two writ petitions filed by the nine MLAs against Speaker Govind Singh Kunjwal in disqualifying them for joining hands with BJP MLAs against the Congress government headed by Harish Singh Rawat.
The judgement refers to the joint memorandum signed by the nine MLAs along with the BJP MLAs and given to the Governor on March 18.
It had urged the Governor to forward a message to the Speaker, seeking division of vote on the Appropriation Bill as in their estimation the government was in minority and was being run in an unconstitutional manner.
It had also contended that the Speaker had not adhered to prescribed procedures and had disregarded the majority. 35 members, which include 26 members of BJP and 9 members of Congress, continued to demand for division of vote, they voted against the bill and the Appropriation Bill was not passed.
They contended that the government was in minority and the Cabinet of Rawat be dismissed.
Justice Dhyani said the petitioners have clearly stated in the joint memorandum that they voted against the Bill and since (the majority was against the Bill), therefore, the Appropriation Bill could not be passed.
The judge noted that the MLAs also concluded in their joint memorandum that the Appropriation Bill was not passed and the government was in minority.
He said whether the Bill was passed or not was not a fact under adjudication before him. A request was therefore made that in exercise of constitutional powers conferred on the Governor, by the Cabinet of Rawat, be dismissed.
"A prudent man would, therefore, in normal circumstances, believe that the petitioners were not only aggrieved with the working of the Speaker, as also with Shri Harish Rawat, but also the fact that they voted against the Bill, and therefore say that the Appropriation Bill could not be passed.
"They also say that the government is in minority. Although, they say in the letter that they are Members of the Indian National Congress, but were not hesitant to say that they voted against the Bill, the Appropriation Bill was not passed and the government is in minority," the judge observed.
Referring to the petitioner's argument equating the disqualified MLAs' action to that of the petitioners in a case related to former Karnataka Chief Minister B S Yeddyurappa, the court said the instant case appears to be on a different plane.
"In Yedyurappa's case, they did not go to the Governor with the members of the opposition; they did not say that they voted against the Bill; and they did not say that the Appropriation Bill could not be passed; and they did not say that the government is in minority.
"The MLAs in Yedyurappa's case only said that Shri B S
Yeddyurappa, Chief Minister, has forfeited the confidence od the people and, therefore, he expresses his lack of confidence in the government headed by Yeddyurappa and, as such he withdraws his support from the government headed by him," the judgement said.
Justice Dhyani observed that there were also other reasons why the MLAs were saved from disqualification in Yeddurappa's case which are not available in the instant case.
"The words 'voluntarily giving up membership' are not synonymous with 'resignation' and have a wider connotation.... It, therefore, follows that even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the party, to which he belongs," he said.
Further, the judge observed that an act of giving a letter requesting the Governor to call upon the Leader of the other side to form a government itself would amount to an act of voluntarily giving up the membership of the party on whose ticket the said members were elected.
"The court is bound to protect the Constitution and its values and the principles of democracy which is the basic feature of the Constitution," the judgement said.
"A political party functions on the shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its members in furtherance of those commonly held principles.
"Any freedom of its members to vote as they please independently of the political party's declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance-nay, indeed its very survival.
"Intra-party debates are of course a different thing. But a public image of desperate stands by members of the same political party is not looked upon, in political tradition, as a desirable state of things," the judgement said.
The judge noted that the manifesto of a political party is a statement of its policy and the promise of a future government.
"One may argue that deserting the leader and deserting the Government is not synonymous with deserting the party. What constitutes defection under Paragraph 2(1)(a) of the Tenth Schedule of the Constitution is deserting the party," he said.
The judge 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.
Referring to freedom of speech and expression, the judgement said "Everybody looks at things from his own point of view. Whereas the petitioners term their action as 'valid criticism' or 'dissent', the Speaker and the Chief Whip of the Indian National Congress in Uttarakhand would term it as 'voluntarily giving up their membership of such political party', which would attract Paragraph 2(1)(a) of the Tenth Schedule. The beauty lies in the eyes of beholder!"
"An Appropriation Bill is matter of policy decision and if any policy is attacked or if there is clear violation of the manifesto or if there is the fall of the government, the same will attract paragraph (2) (1) (a) of the Tenth Schedule of the Constitution and will amount to 'voluntarily giving up membership of the party'.
The judge maintained that every case has to be decided on its own merits and said that the petitioners are clearly the victims of their own actions, probably not knowing fully well that it will take them so far.
"The court is sympathetic to them. Such type of things happen when people assemble together. But one should not forget that they are responsible law makers. They make the law, which is implemented by the Executive and is adjudicated by the Judiciary. The fourth estate i.E. The Press, brings the actions of all wings of democracy to the notice of We The People of India," the judge said.
On the complaint of the MLAs that the Speaker had not observed principles of natural justice, Justice Dhyani said the Speaker might have been elected on a ticket of a party but when he is performing the job of a Speaker he has to be unbiased and non-biased leaving aside his party affiliations.
"A Speaker includes pro-tem Speaker and the likes. It is apparent on the basis of documents on record, in the instant case, that the opportunity to the liking of the petitioners was not granted by the Speaker, but that opportunity cannot be termed as insufficient opportunity," he said.
"The inference is that the principles of natural justice have not been violated by the Speaker, while adjudicating the petitions of the petitioners. No interference is, therefore, called for in the impugned order. Both the writ petitions, therefore, fail and are dismissed," the judgement said.
The judge said the Court is fully conscious of its limitations and directed that at no point of time, this judgement shall come in the way of Speaker-party respondent no.1 to review his own order, in accordance with law, if petitioners are so advised to move for the same, on any of the grounds available to them in law.
