The political uncertainty in the State of Rajasthan may have been diffused with the incumbent Congress government managing to get its flock together and winning the floor test. The facts, briefly stated, are that disqualification petitions against 19 MLAs were filed before the Speaker who issued notices to them under the Tenth Schedule. This was challenged by the MLAs before the High Court in a writ petition also challenging the constitutional validity of Para 2(1)(a) of the Tenth Schedule itself. The High Court proceeded to uphold the maintainability of the said challenges and directed the Speaker to maintain status quo till the culmination of Court proceedings. Thereafter, a fresh set of writ petitions were filed by the BJP and BSP challenging the merger of 6 erstwhile BSP legislators with the Congress party, which merger happened almost a year ago in September, 2019, and seeking their disqualification.
The proceedings before the High Court, as noted above, give rise to some very crucial and interesting questions of Constitutional interpretation surrounding not only the scheme of the Tenth Schedule in respect of the Speaker's jurisdiction and the restraint required to be exercised by Constitutional Courts but also in respect of the jurisdiction of a High Court under Article 226 to adjudicate the validity of constitutional provisions; which issues are sought to be dealt with presently.
High Courts cannot claim jurisdiction to adjudicate constitutional validity of Para 2(1)(a) of the Tenth Schedule
A Constitution Bench comprising of 5 Judges of the Supreme Court way back in the year 1992 has exhaustively dealt with and repelled the basic structure challenge to Para 2(1)(a), dismissing it as unsound in view of "the immorality and unprincipled chameleon like changes of political hues in pursuit of power and pelf". The Constitution Bench leaned in favor of legislative wisdom to conclude that Para 2(1)(a) does not subvert democratic rights of MPs/MLAs nor does it violate their freedom of speech, vote or conscience. Conversely, it held that the provisions of Para 2(1)(a) are salutary and intended to strengthen the fabric of the Indian Parliamentary democracy by curbing unprincipled and unethical political defections. The raising of this very challenge once again by the 19 MLAs was nothing but flogging a dead horse.
The law laid down in Kihoto Hollohan being binding under Article 141 has been consistently followed by various High Courts as well as the Supreme Court for over 28 years now. Judicial discipline and constitutional hierarchy necessitates that until and unless a bench of more than 5 judges overturn the law laid down in Kihoto Hollohan, the same is to be followed as a binding precedent. This means that even Supreme Court benches comprising of two, three or even five judges are bound by the dictum of Kihoto Hollohan.
Assuming that in the future another Constitution Bench of 5 judges doubts the correctness of Kihoto Hollohan, it still cannot differ with it as it is bound to follow it. It can at best refer the matter for consideration by a larger bench of 7 judges, which alone will have the power and jurisdiction to overturn the law laid down in Kihoto Hollohan, if at all the need arises. The Division Bench of the Rajasthan High Court consisting of 2 Judges was merely required to apply the law laid down in Kihoto Hollohan. It ought not to have, by any stretch of judicial incantation, re-opened a challenge which 5 judges of the Supreme Court have long rejected.
Interestingly, the High Court's decision to hold the writ petition as maintainable to decide on the validity of para 2(1)(a), itself deviates from the practice and procedure established in Kihoto Hollohan. The judgment in Kihoto Hollohan was pronounced on two dates i.e. 12.11.1991 as well as 18.02.1992. The Supreme Court pronounced its findings and conclusions upholding the constitutional validity of the amendment and of the provisions of the Tenth Schedule on the first date and on the second date the reasons for the conclusions were pronounced.
While pronouncing the first order on 12.11.1991, the Supreme Court allowed a Transfer Petition withdrawing a writ petition, challenging the provisions of the Tenth Schedule, from before the High Court of Guwahati to itself "for the purpose of deciding the constitutional issues and of declaring the law on the matter."
The Supreme Court thus made it clear that the determination of the validity of the Tenth Schedule could only be done by it. This direction read in conjunction with the emphatic pronouncement of Justice Rohinton Nariman in the 9 Judge Bench 'Right to Privacy' case that "when a substantial question as to the interpretation of the Constitution arises, it is this Court and this Court alone under Article 145(3) that is to decide what the interpretation of the Constitution shall be, and for this purpose the Constitution entrusts this task to a minimum of five Judges of this Court", leaves no room for doubt that any challenge to the provisions of the Tenth Schedule or for that matter to any constitutional provision has to be before a Constitution Bench comprising of a minimum of 5 judges.
High Court could not have directed 'status quo' to be maintained, by usurping the exclusive domain of the Speaker
While examining the scope and extent of judicial review of the Courts, the Constitution Bench in Kihoto Hollohan held that though the jurisdiction of courts under Articles 136, 226 and 227 is not completely taken away in view of the finality clause in Para 6 of the Tenth Schedule, the scope of judicial review does get limited and excluded in respect of an act committed by the Speaker within his jurisdiction. In other words, if the Speaker has acted in the exercise of and within the confines of his jurisdiction under the Tenth Schedule, Constitutional Courts will not interfere with it in exercise of their powers of judicial review. It was made absolutely clear that judicial review is not available at a stage prior to the final decision of the Speaker in the form of any quia timet relief at an interlocutory stage.
This very issue relating to the jurisdiction of a High Court to pass interim orders during the pendency of disqualification proceedings has already been settled by the Supreme Court in Speaker, Haryana Vidhan Sabha v. Kuldeep Bishnoi. It was held in that case that in view of the constitutional scheme of the Tenth Schedule "normally judicial review could not cover any stage prior to the making of the decision by the Speaker or the Chairman of the House, nor was any quia timet action contemplated or permissible." It was further held that "restraining the Speaker from taking any decision under Para 6 of Schedule X is, in our view, beyond the jurisdiction of the High Court, since the Constitution itself has vested the Speaker with the power to take a decision under Para 6 and care has also been taken to indicate that such decision of the Speaker would be final. It is only thereafter that the High Court assumes jurisdiction to examine the Speaker's order."
Earlier this year, a three judge bench of the Supreme Court in Keisham Meghachandra Singh v. Hon'ble Speaker Manipur Legislative Assembly, also held that the finality clause in paragraph 6 of the Tenth Schedule protects "the exclusive jurisdiction that vests in the Speaker to decide disqualification petitions so that nothing should come in the way of deciding such petitions." It was observed that while the exclusivity of the Speaker's jurisdiction under the Tenth Schedule does not prevent the Courts from passing interim directions to facilitate the Speaker arriving at a prompt decision as to disqualification, no direction/order could be passed preventing/interdicting the Speaker from concluding the Tenth Schedule proceedings.
The exclusive forum for adjudicating the validity of a 'merger' is the Speaker in a proceeding under the Tenth Schedule, which Forum cannot be bypassed in Writ Proceedings
The Tenth Schedule gets invoked only when a disqualification petition is filed before the Speaker under Para 6(1), seeking to disqualify a legislator under Para 2(1). Para 4 provides for merger as a defense/shield to a legislator against whom the disqualification proceedings have been initiated. Para 4(1) provides for the merger of the 'original political party' of a member with 'another political party' itself so as to prevent a member from being disqualified under Para 2(1). Para 4(2), on the other hand, operates in a completely different field since it provides for a 'deemed' merger as opposed to an 'actual' merger provided for in Para 4(1). This deeming fiction of merger sets in when at least 'two thirds' of the members of the legislature party agree to merge with another political party.
The adjudication of the validity of 'merger', which could only be raised as a defence, cannot be divorced from disqualification proceedings under the Tenth Schedule before the Speaker and dealt with in isolation by the High Court or for that matter even by the Speaker, in the absence of adjudicating the question of disqualification under Para 6(1). This position is no longer res integra as the Supreme Court has held that "Independent of a claim that someone has to be disqualified, the scheme of the Tenth Schedule or the rules made thereunder, do not contemplate the Speaker embarking upon an independent enquiry as to whether there has been a split in a political party or there has been a merger."
The observations in Rajendra Singh Rana have been reiterated and followed subsequently in Kuldip Bishnoi to hold that the determination of the question of merger "could not be divorced from the motion before the Speaker seeking a disqualification of the Member or Members concerned under Para 6 of Schedule X." In so far as the jurisdiction of the High Court to look into the validity of merger was concerned, it was held that it is "..only after a final decision is rendered by the Speaker under Para 6 of Schedule X to the Constitution that the jurisdiction of the High Court under Article 226 of the Constitution can be invoked."
As far as the question of 'recognition' of merger by the Speaker is concerned, he has absolutely no discretion but to recognize the same as and when a claim is made before him. At this stage, the Speaker has no power or discretion to adjudicate the validity of the merger, nor is he required to do so. The independent power of the Speaker to recognize a merger been acknowledged by the Supreme Court in Rajendra Singh Rana. In fact, such recognition of merger, prior to and independent of disqualification proceedings, has been very recently noted with approval by the Supreme Court in Shrimanth Balasaheb Patil v. Speaker, Karnataka Legislative Assembly.
Another aspect is the protection afforded by Article 212 to the proceedings under the Tenth Schedule, by deeming the latter to be proceedings inside the House. This protection, in my view, ought to be applicable with even greater vigor to the Speaker's recognition of a merger within the House. This is so because as opposed to the 'adjudication' of a merger by the Speaker in his role as the 'Tribunal' under the Tenth Schedule, the 'recognition' of a merger within the legislature is done by the 'Speaker' in his quintessential role as the 'Master of the House'.
The Division Bench's order of 'status quo', interdicting the Tenth Schedule proceedings before the Speaker against the 19 Congress MLAs; the Governor's belated summoning of the Assembly; as well as the non interference by the Single Judge in the status of the 6 erstwhile BSP legislators who had merged with the Congress since 18.09.2019; may have come as a blessing in disguise for the Rajasthan Congress to restore stability within the party and demonstrate enough strength to continue governing the State.
The entire episode however, as it unfolded before the Division Bench, seems to have unsettled what has long been settled in respect of constitutional adjudication by the Speaker under the Tenth Schedule. This inviolable and independent dispensation of the Speaker's functions as a Constitutional Tribunal, has always restrained the Courts from exercising their powers of judicial review till the Tenth Schedule proceedings culminated in the passing of a final judgment by him. It must also not be forgotten that Kihoto Hollohan further curtailed and limited the exercise of judicial review of the final decision of the Speaker to extremely limited circumstances, apart from categorically ruling out any quia timet action which could thwart the proceedings before the Speaker. While the shifting sands of politics are difficult to comprehend, it is all the more necessary that the approach of the Constitutional Courts, rooted in precedents and judicial discipline, be such, that no legal uncertainty is created especially when the law is already well settled.
The political developments as happened in Rajasthan are not the first nor will they be the last. In the last six years, the 'constitutional sin of defection' has been used as a tool to topple democratically elected governments which are politically opposed to the ideology of the BJP-led central government. This has already happened in the states of Arunachal Pradesh (2015/2016), Uttarakhand (2016), Goa (2017), Karnataka (2019) as well as Madhya Pradesh (2020), apart from an unsuccessful attempts made in Maharashtra (2019) as well as presently in Rajasthan (2020). If not reined in by the Courts, 'democratic coups' engineered by the 'constitutional sin of defections' would corrode the democratic structure of our country which rests on the pedestal of political parties with varying ideologies being afforded a fair chance to participate in the governance of our country.
Views are personal only
(Javedur Rahman is an Advocate-on-Record of the Supreme Court of India. He graduated from the National University of Juridical Sciences (NUJS), Kolkata, in the year 2013)
 Kihoto Hollohan v. Zachilhu, (1992) Supp 2 SCC 651
 ibid at para 38
 ibid at para 49
 ibid at para 53
 Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673
 Nutan Kumar v. IInd ADJ, (2002) 8 SCC 31 at para 7
 Kihota Hollohon v. Zachilhu, (1992) 1 SCC 309
 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 at para 502
 Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 at para 110
 (2015) 12 SCC 381
 ibid at para 39
 ibid at para 44
 (2020) SCC OnLine SC 55
 ibid at para 23
 ibid at para 29
 Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC 270 at para 25
 ibid at para 27
 ibid at para 26
 (2015) 12 SCC 381 at para 43
 (2007) 4 SCC 270 at para 28
 (2020) 2 SCC 595 at paras 186 – 188