The 19 rebel MLAs, including Sachin Pilot, filed a petition before the High Court citing violation of their freedom of speech and expression (Archive)

A DAY ahead of Rajasthan Speaker C P Joshi taking up the matter of the Assembly membership of the 19 rebel Congress MLAs, including Sachin Pilot, they filed a petition before the High Court citing violation of their freedom of speech and expression, and challenging the anti-defection law.

In the petition, that makes Joshi as well as Assembly Secretary Pramil Kumar Mathur parties, the MLAs said no offence had been made out against them, and that the disqualification notices to them on the ground of defection went against their right to freedom of speech.

The MLAs were represented by former Solicitor General of India Harish Salve and ex-Attorney General Mukul Rohatgi, among others, while Rajasthan Advocate General M S Singhvi and Abhishek Manu Singhvi were part of the team that appeared for the respondents.

Just as the hearing in the case began at 3 pm on Thursday in the court of Justice Satish Kumar Sharma, Salve sought time to amend their petition. In the amended petition, filed at 5 pm, the MLAs essentially made two arguments: that they did not violate the clause under which their disqualification had been sought, and that the clause itself violated the right to freedom of speech and expression.

Salve said they wanted to challenge the validity of a provision in the Schedule 10 of the Constitution dealing with defection which, he said, “is necessary for proper adjudication of the case”.

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Opposing the petition, the respondents argued that the grounds proposed to be incorporated “have already been held to be not tenable by the Supreme Court. Therefore, the application deserves to be dismissed on this count”. However, without commenting on the merits of their argument, Justice Sharma said the petitioners “have got right to incorporate relevant ground(s) available to them to challenge the impugned notice, whether the same would be finally found to be tenable or not”.

N K Maloo, who is representing government chief whip Mahesh Joshi, said that the matter will now be heard on Friday by a Division Bench to be formed by the Chief Justice, at 1 pm – which is also the deadline given by the Speaker to the rebel MLAs to respond to the disqualification notices. Maloo said there was no clarity on the fate of the MLAs as yet.

The petition by the rebel MLAs says that “mere expression of dissatisfaction or even disillusionment against the party leadership cannot be treated to be conduct falling within the clause 2[1](a) of the 10th Schedule of the Indian Constitution”. And that not attending two meetings of the Congress Legislature Party (CLP) did not tantamount to inviting disqualification on the ground of defection.

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While Clause 2 of the 10th Schedule deals with disqualification of a member on grounds of defection, its point [1](a) states that a member may be disqualified “if he has voluntarily given up his membership” of a political party.

The rebel MLAs also argue that “even if expression of views and opinions, however strongly worded, are treated to be a part of clause 2[1](a), the said clause… will have to be declared ultra vires the basic structure of the Constitution” on the ground of the right to free speech.

The MLAs say they wanted to highlight “certain genuine grievances in the manner in which the (Rajasthan) government was functioning as the voices of the masses were not being heard”. “Being aggrieved, the petitioners expressed their grievances that were not tolerated by the Chief Minister.” The MLAs say that the investigation being held by the Special Operations Group of the police into an alleged plot to topple the Ashok Gehlot government was a ploy to threaten them.

The MLAs add that the Rajasthan Legislative Assembly (Disqualification) Rules provide for a seven-day day notice to a member to answer a show-cause notice. In their case, the Speaker issued the notices on July 14, and asked them to respond by 1 pm on July 17.

The legislators cite repeated assertions by Pilot, who has been removed as deputy CM and PCC chief, that they are not joining the BJP and continue to be a part of the Congress.

Seeking a direction upholding their status as MLAs and a stay on the notices to them by Speaker Joshi, they accuse him of “mala fide intention”, “apprehending” that he will disqualify them on Friday, “under pressure of Chief Minister” and “without following the procedure of law”.

In his petition to Speaker Joshi seeking disqualification of the MLAs under Clause 2[1](a), chief whip Mahesh Joshi listed several reasons – their absence from CLP meetings; conspiracy to bring down the elected government; conduct in a manner “prejudicial” to the interests of the state Congress government; the fact that they “remained mysteriously absent in persuance of this sinister objective” without providing any reason; and that they were “admittedly part of a group seeking to destabilise the government.” The chief whip submitted media reports to substantiate his last charge.

He also said that the actions of the MLAs showed that they had “voluntarily given up the membership” of the Congress and that they should hence be disqualified “with immediate effect”.