Suspense on 9 disqualified MLAs heightens; HC order on May 9

Suspense mounted today on the fate of the nine disqualified rebel Congress MLAs with the Uttarakhand High Court reserving its judgement for May 9, a day ahead of the floor test in the state Assembly for sacked Chief Minister Harish Rawat to seek a confidence vote.

"The hearing has been concluded.  I will pronounce the judgement  at 10.15 AM on May 9," Justice U C Dhyani said in brief remarks counsel at the conclusion of nearly three hours of arguments on both sides.

While ordering the floor test, the Supreme Court had said that the disqualified MLAs cannot participate in the voting if continue to remain disqualified at the time of voting.

observing that "if they (disqualified MLAs) have the same status" at the time of vote of confidence, they cannot participate in the House.

The court had also said, "However, our observation in praesenti will not cause any kind of prejudice to the merits of the case of disqualified Members of Legislative Assembly, which is sub-judice before the High Court."

At present, in the 70-member assembly, BJP has 28 MLAs, Congress has 27, BSP has 02, while there are three independent MLAs and one belongs to Uttarakhand Kranti Dal (P) lawmaker. Nine MLAs are Congress rebels and one is a BJP rebel.

Counsel C Ariyama Sundaram, appearing for the disqualified MLAs, argued that the Speaker's action against them was "biased" that went against tenets of natural justice.

He contested the three grounds on which the action against the MLAs was taken.  He asked what was wrong in the Congress MLAs writing a joint memo to the Governor with their BJP counterparts seeking a division of votes on the Appropriation Bill.

Sundaram said writing a joint memo was  an act of dissent which was healthy in democracy and not defection within the meaning of the 10th schedule of the Constitution.

If according to the Speaker the Appropriation Bill was passed by the Assembly, then how does the question of rebel MLAs voting with the BJP in the Assembly arise, he asked.

The Speaker's action was defended by counsel Amit Sibal who said the action of the rebel MLAs going with the BJP MLAs in the same bus to the Governor and later in the same chartered aircraft outside Uttarakhand in the company of BJP General Secretary Vijay Vargiya showed their ideological compatibility.

The rebel MLAs parading before the Governor with the BJP MLAs also amounted to defection under the anti-defection law, Sibal said.

Sundaram maintained there was nothing wrong in the rebel MLAs going with the BJP MLAs which he said was not an issue of ideology nor did it attract the provisions of the anti-defection law as it did not amount to defection.

Senior Supreme Court lawyers Kapil Sibal and Amit Sibal argued on behalf of the Speaker while CA Sundaram and Dinesh Dwiwedi represented the disqualified rebel MLAs.

Countering Kapil Sibal's argument that the Speaker's action in matters related to the legislature could not be challenged, Sundaram said any action fell under the scope of judicial review.

"Factors that the Speaker relied on for disqualifying the MLAs like a joint memorandum to the governor seeking a division of votes on the appropriation bill, their going along with opposition party (BJP) members to the Governor then their going in a chartered plane to Delhi cannot serve as a gorund for their disqualification," he said.

The Speaker's own claim that the appropriation bill was passed by voice vote shows there was no ground for disqualifying the MLAs under the anti-defection law, Sundaram said.

"The Speaker says the bill was passed, the chief minister says the bill was passed, the division bench says it was passed, then where is the ground for disqualification?," he argued.

Demanding division of votes on budget is a member's right and travelling in a bus to the Governor with a complaint against what they thought was wrong has nothing wrong about it, he said.

Sundaram also claimed that the bus was provided to the MLAs by the state government and the aircraft referred to by the Speaker as a chartered flight was a Spicejet commercial flight from Dehradun to Delhi.

Kapil Sibal countered his argument by asking whether there were commercial flight operations from Dehradun to Delhi after 1 AM in the night.

He also said if they knew about all this why did they not tell the Speaker or the court about it.

Lawyer Amit Sibal said merely claiming is not enough and asked the rebel MLAs to produce evidence in support of the argument that it was a Spicejet plane or the bus was provided by the state government.

He also showed a video clipping to the court in support of the argument that the bus was not provided by the state government.

However, Justice Dhyani said the verdict will be based on whatever documents have been made available to court already as evidence from both sides in support of their arguments.