The dissenting MLAs have challenged constitutional validity of Section 2(1) of the anti-defection laws, which allow the Speaker to disqualify an MLA for so-called anti-party activities. (Representational Image)

The Rajasthan High Court’s decision on Friday agreeing to hear in detail the challenge against anti-disqualification laws made by 19 rebel Congress MLAs has opened up the debate on a law considered settled on the Tenth Schedule of Constitution, which was upheld by the Supreme Court in 1992.

The HC has agreed to test whether disqualification of an MLA for dissent against the party violates the Constitution’s basic structure and fundamental right to free speech, among other issues raised by rebel MLAs.

In 1992, a five-judge Constitution Bench of SC led by Justice M N Venkatachalliah – in Kihoto Hollohan v Zachillhu and Others case – had upheld constitutional validity of the 52nd amendment to the Constitution, through which anti-defection laws were introduced.

Sachin Pilot and 18 rebel MLAs were served a disqualification notice by Assembly speaker C P Joshi on July 15, asking them why they cannot be disqualified under Section 2 of Tenth Schedule for “voluntarily giving up membership of the party”.

Although the MLAs have not officially resigned from the Congress, actions perceived as “anti-party activities” are often inferred as voluntarily resigning from the party. The Pilot camp’s rebellion against CM Ashok Gehlot and skipping two Legislative Party meetings have been cited as grounds to initiate disqualification proceedings in the notices.

The dissenting MLAs have challenged constitutional validity of Section 2(1) of the anti-defection laws, which allow the Speaker to disqualify an MLA for so-called anti-party activities.

This challenge is the first of 13 questions framed by the High Court that will be heard in detail:

“Whether the judgment of the Hon’ble Supreme Court in Kihoto Hollohan Vs. Zachillhu & Ors has tested the constitutionality of Paragraph 2(1) (a) of the Tenth Schedule…only with the touchstone of ‘crossing over’ or ‘defection’ and the Court was never called upon to answer, much less the question of intra-party dissent?”

In its last question of law, HC has said that it will also examine if the top court’s decision in Kihoto Hollohan case “can be understood as to bar the high court from examining” the constitutionality of anti-defection laws.

While there have been many instances of cases under the Tenth Schedule reaching the courts on powers of the Speaker vis-à-vis rights of legislators, a constitutional challenge has not been made since 1992. If the court finds that any law interferes with fundamental rights or the basic structure of the Constitution, it can be struck down as null and void.

Senior advocates Harish Salve and Mukul Rohatgi, who appeared on behalf of the rebel MLAs, argued that although the SC had upheld constitutional validity of Tenth Schedule, the court did not examine the laws on grounds of free speech.

In the Kihoto Hollohan case, the court dealt principally on whether the insertion of the Tenth Schedule violated the powers and privileges of the legislative houses and its members guaranteed under Article 105, and whether barring jurisdiction of the high courts and the SC for holding disqualification proceedings violated the principle of judicial review, which is part of the basic structure of the Constitution that cannot be done away with.

The court, while reiterating that the power of judicial review cannot be taken away through an amendment, laid down the position on when the Speaker’s decisions can be challenged, and to what extent the courts can review such decisions.

Salve argued that “intra-party dissent” cannot be construed as voluntarily giving up membership of a party since it takes away a legislator’s fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a).

He also argued that dissent outside the floor of the House must be protected, especially since in 2007, a nine-judge SC bench had said that judicial review cannot be taken away when fundamental rights are involved, as fundamental rights form part of the basic structure.

The Rajasthan HC will also examine if criticism of the Chief Minister, manner of functioning of the state government or the state unit of a party by an MLA outside the House can be considered as voluntarily giving up membership of the political party.