Ahead of the crucial floor test by ousted Uttarakhand Chief Minister Harish Rawat on Tuesday, the Congress smelt victory as the Supreme Court refused to allow the nine disqualified rebel Congress MlAs to vote.
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 the six-member PDF to make the ruling side’s figure of 33.
The PDF comprises two MlAs of the BSP, one of Uttarakhand Kranti Dal and three Independents. Rawat needs the backing of 31 MlAs for a simple majority.
The BJP has 28 MlAs, including that of Bhim lal Arya whose loyalty is in doubt.
A specially-convened two-hour-long session during which President’s Rule will be kept in abeyance will be held between 11 am and 1 pm for the “single agenda” of the floor test, a Bench of Justices Dipak Misra and Shiva Kirti Singh had said on Friday.
The day did not start on a good note for the disqualified MlAs as the Uttarakhand High Court dismissed their petitions challenging the Speaker’s action to disqualify them. The MlAs then rushed to the SC, which posted the matter for July 12.
Senior advocate CA Sundaram appearing for the MlAs argued that their disqualification was not proper as the HC proceeded on the basis of a letter signed by them, along with 27 BJP MlAs that was written to the Governor, expressing dissatisfaction with the Chief Minister and Speaker of the House for not allowing a division on the passing of the Appropriation Bill.
Sundaram said, “I am fully within my right to dissent with the Chief Minister as part of intra-party democracy. But to treat my dissent to mean that I have left the party is a wrong reading of the law and hence the Tenth Schedule of the Constitution relating to disqualification will not hold good.”
He further urged the court to consider that disqualification will only set in if they voted against the Appropriation Bill. But since the Bill was stated to have been passed, there was no proof of anti-party activity on their part, Sundaram added.
The Bench of Justices Dipak Misra and Shiva Kirti Singh issued a notice on the petition but Sundaram pressed for stay of their disqualification in order to participate in the floor test.
He argued, “The purpose of the court lifting President’s Rule and ordering a floor test as an extraordinary step is to get an idea of the ground reality. This purpose will get furthered if my disqualification is stayed for the period of two hours when the voting takes place and the result is placed in a sealed cover in the court.”
The Bench said the order to lift President’s Rule to enable the floor test from 11 am to 1 pm on Tuesday was passed with the consent of both sides. This will not be true as regards lifting of the disqualification.
Appearing for former Chief Minister Rawat, senior advocate Kapil Sibal pointed out that prior to the stage when the Assembly met to pass the Appropriation Bill on March 19, the rebel MlAs had stated in a memorandum that the Government was in a minority, which was an admission on their part of having left the party.
The Bench reiterated that the floor test will go on as per its earlier direction but kept the issue of the nine disqualified MlAs for July 12. Meanwhile, the court modified its May 6 order by directing the Principal Secretary, legislative and Parliamentary Affairs, Government of Uttarakhand to remain present in the House during the voting and produce the result along with video recording of proceedings in a sealed cover to court on Wednesday.
Earlier, Justice UC Dhyani of the HC 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 the 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 UC Dhyani said in his 57-page judgment.
The HC 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 recognizing 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