SC Issues Notice To ECI In Plea Against Disqualification Of Six Himachal Pradesh Congress MLAs Who Cross Voted For BJP; Agrees To Hear Plea Before Re-election

The Supreme Court today refused to stay the order of the Himachal Pradesh Assembly Speaker disqualifying six Congress MLAs, who had cross-voted in the recent Rajya Sabha polls in the state.

The Bench of Justice Sanjiv Khanna and Justice Dipankar Datta issued notice to the office of Himachal Pradesh Assembly Speaker Kuldeep Singh Pathania and sought its response to the plea in four weeks.

At the outset, Senior Advocate Harish Salve, appearing for the petitioners, stated the sequence of events that led to the disqualification of the six MLAs. "On February 15th a whip is issued; on February 27, the election are held and there is cross-voting, and the candidate is defeated," he submitted. 

Senior Advocate Kapil Sibal, appearing for the respondent, submitted that it is notified that re-election for the six vacant constituency seats will be held on June 1.

The Bench was then told that there is been no notification of re-election, but only the dates had been announced. 

Salve submitted that on February 27th a notice was issued, asking the MLAs to appear at 1:30 pm to furnish comments to the disqualification petition. Salve told the Court, "Notices are all given. We file a reply saying we don't even have a copy of the petition."

To this, Justice Khanna said, "The answer to this is that you were sent the document not only by post but also on WhatsApp." 

"We can issue notice; that's fine. But there will be no stay," Justice Khanna said. 

Salve responded by saying that the petition will then become infructuous. He said that if the election is held as scheduled before the court delivers its verdict, the plea will become infructuous. "I am sorry, My Lords, but when an election petition is filed..Lordship may hear me." he submitted.

“As far as the fresh election is concerned. That may be an issue; we will have to decide be it before the election or we don't allow the fresh elections to take place. That we can put to the opposite side. The consequences are there for you, but we will not allow you to vote and be a part of the legislative assembly. We will not allow you to even participate," Justice Khanna said. 

Salve responded, "That's alright, but I cannot be told, sorry, elections have now been held and someone has already come in your place." He submitted that the Court should either hear the matter before the election that is now fixed or not allow the election to happen during the pendency of the petition. 

"That we can examine," Justice Khanna said. 

Opposing the issuance of notice in the plea, Senior Advocate Abhishek Manu Singhvi on behalf of the respondent submitted, "If your Lordships issue notice at all, there are three points: one, Article 329 has kicked in by the notification; there is no question of staying any fresh election process. There have been four judgments of this court to that effect; two, on the main matter, there is a whole line of law that the SLP or writ petition is not allowed on the first day by staying a disqualification. There is no question of that."

Justice Khanna further remarked, "On the second part, whether we should stay the fresh elections or not may require a little..because otherwise it may become infructuous."

“The writ petition was filed before the notification. Then there will be a bar,” Justice Datta said.

Senior Advocate Satya Pal Jain informed the Bench that the Election Commission has stated that on May 7, notification of the date of filing for nominations will be announced. 

To this, Justice Khanna remarked, "Ok, ok, they (ECI) may delay it once we issue notice, they may themselves may delay."

Taking note of the submissions, the Court ordered, “Issue notice in the main writ petition as well as the stay application. Notice accepted..Re-list in the week commencing May 6, 2024. Counter-affidavit may be filed within four weeks, rejoinder, if any, within one week.”

Pertinently, Senior Advocate Singhvi, who appeared to oppose the MLAs, is also the Congress leader who had lost the Rajya Sabha election owing to cross-voting by the Petitioner MLAs.

The Congress MLAs had cross-voted for the BJP in the recent Rajya Sabha polls in Himachal Pradesh, prompting their disqualification by Himachal Pradesh Assembly Speaker Kuldeep Singh Pathania on February 29.

The MLAs were not disqualified for defeating the Congress party's candidate, Singhvi, since cross-voting in Rajya Sabha elections does not entail disqualification. The Petitioner MLAs who had voted in favour of BJP nominee Harsh Mahajan in the Rajya Sabha polls on February 27, had later "abstained" from voting on the budget.The Speaker of the Himachal Pradesh Assembly, Kuldeep Singh Pathania, had disqualified the six on the Congress's plea for defying the party whip that required them to be present in the House and vote for the budget.

The disqualified MLAs are Rajinder Rana, Sudhir Sharma, Inder Dutt Lakhanpal, Devinder Kumar Bhutoo, Ravi Thakur, and Chaitanya Sharma.

On February 29, during a press conference, the Speaker had declared the disqualification of the six MLAs. Citing their defiance of the party whip, he invoked the anti-defection law, ruling that they immediately ceased to be members of the House.

Cause Title: Chaitanya Sharma and Ors. v. Speaker, Himachal Pradesh Legislative Assembly and Ors. [W.P. (C) No. 156/2024]