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BSP MLAs Disqualification: Plea In Supreme Court Against Rajasthan HC's Refusal To Stay Rajya Sabha Election Result

Sohini Chowdhury
9 Jun 2022 12:05 PM GMT
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A Special Leave Petition has been filed before the Apex Court, assailing the order of the Rajasthan High Court refusing to stay the declaration of Rajya Sabha Election results till the disposal of a PIL pertaining to disqualification of the six MLAs in the state.

The said MLAs were originally elected as members of Bahujan Samaj Party (BSP) and were later declared by the Speaker of Rajasthan Vidhan Sabha as members of the Indian National Congress (INC).

On Thursday, the Counsel appearing on behalf of the petitioner mentioned the matter before the Apex Court, "This is a matter of grave urgency. It concerns the Rajya Sabha election. Plea is being drafted against the order of today morning of Rajasthan High Court. Please list this."

A vacation Bench comprising Justices MR Shah and Aniruddha Bose asked her to mention the matter before the Chief Justice of India for the purpose of listing. "Mention before CJI NV Ramana and also speak to the registry. We cannot list it like this."

Six MLAs of the BSP, who were elected to the State Assembly in December, 2018 informed the Speaker of Rajasthan Vidhan Sabha, on 16.09.2019, that they have merged their political party with the INC. Accordingly, on 18.09.2019, the Speaker declared them MLAs of INC.

The petitioner herein by way of representations sought correction of the party position of the six MLAs. On 17.06.2020, the BSP, through its National General Secretary clarified that it has not merged into INC either at the Nation or the State levels. A similar letter was also issued by the Rajasthan unit president of the BSP.

The petitioner had submitted a representation to the Election Commission of India (ECI) seeking changes to the party position of the said MLAs. In its response the ECI stated that it did not have the authority to reverse the decision of the Speaker.

The Rajya Sabha election from Rajasthan for the year 2020 was held on 19.06.2020. On 04.08.2020, the petitioner filed a PIL before the Rajasthan High Court praying to set aside the order dated 18.09.2019 passed by the Speaker and to declare the six MLAs disqualified as the members of the Assembly for defection. The petition was admitted and is pending adjudication. With respect to the biennial election of 2022, the petitioner had written to the ECI beseeching it to revise the voter list to reinstate their original party position and to postpone the election till the said correction is made. This representation was rejected by the ECI on the ground of lack of authority.

Eventually, the petitioner filed a writ petition before the Apex Court seeking direction to the ECI to conduct biennial election on the basis of status of the six MLAs as MLAs of BSP and not INC. Thereafter, the petitioner filed an application under Article 226 before the Division Bench of the Rajasthan High Court to keep the votes casted by the six MLAs separately and not declare the results of the election till the disposal of the PIL, which was dismissed.

"In the present PIL filed by the petitioner, even notices have not been issued to the other side. It is also evident that during the pendency of the present PIL, elections of the Rajya Sabha were held and Members were elected to the Rajya Sabha. Petitioner at that time also did not press for any interim relief. Hence, we are not included to entertain the present application for interim relief as the election process has already been commenced and election is scheduled to take place tomorrow," the High Court said.

The present petition before the Apex Court contends that the declaration of the Speaker regarding change of party position was in violation of the provisions of the Constitution of India, 1950. Further, it submits that if the votes of the six MLAs are considered in the upcoming Rajya Sabha elections the whole democratic process would be debased and it would also be in derogation of the Rule of law and principle of fair election. It notes -

"'Democracy' and 'free and fair election' are essential and inseparably linked to each other. In a democracy the voter has overwhelming importance and popular mandate cannot be hijacked from the course of holding free and fair elections. A citizen's freedom to elect a candidate of his choice is the foundation of a free and fair election. But after getting elected, if the elected candidate shifts his loyalty and ideology, he not only betrays the electorate, but also pollutes the pure stream of democracy."

It avers that the party position has been claimed to have been changed by the Speaker under para 4 of the 10th Schedule of the Constitution, but the same could not have been done without proceedings under para 6 of the said Schedule. The claim of merging BSP into INC was made by the six MLAs themselves without any material to substantiate it; there was no complaint under para 6 on the basis of which the Speaker had declared BSP MLAs to be MLAs of INC and therefore the order passed by the Speaker is non-est.

The Speaker's order has been further challenged on the ground of illegality, unconstitutionality, lack of jurisdiction and for being void ab initio. It is asserted that the said MLAs, who had voluntarily given up their membership of BSP and had defected, if allowed to continue in the Assembly even for a day it would be illegal and unconstitutional as per the law laid down in Rajendra Singh Rana v. Swami Prasad Maurya.

It also points out that there is no record of any proceedings with respect to amalgamation of the BSP and the INC under the Election Symbols (Reservation and Allotment) order, 1968. It is submitted that the order of the Speaker cannot be justified even on the basis of the 'Two Hats' theory, that the MLAs have two identities - one as the member of original political party and the other as member of legislature party, because it was rejected by the Apex Court in the judgment in Rajendra Singh Rana.

Case Title: Hemant Natha v. Speaker & Ors.

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