Disagreements within a party is not a ground for disqualification, and this is why no response will be filed for the notice sent to dissident MLAs, top lawyer Harish Salve argued today before the Rajasthan High Court, appearing on behalf of Sachin Pilot and the 18 MLAs supporting him.
The former Deputy Chief Minister of Rajasthan has taken the Congress to court after the Speaker issued a notice to him and the other MLAs, when they failed to turn up for two legislature party meetings last week.
The Congress has argued that without any decision from the Speaker, the rebels -- who have raised a storm for its government led by Ashok Gehlot -- cannot go to court.
The rebels have also challenged the Anti-Defection law, which is part of the Tenth Schedule of the Constitution, under which the Speaker sent his notices. Their disqualification will lower the majority mark in the assembly and give Chief Minister Ashok Gehlot a shot at saving his government.
But Mr Salve, who earlier represented the country in some of its biggest cases abroad, argued that if a a group of MLAs "raise their voices against style of functioning of Chief Minister, that is not defection".
"Defection is when you leave Party A and joint Party B. Protesting against the party while staying within the party cannot be regarded as giving up party membership".
"Intra-party dissent, however shrill it may be, until the moment it goes to the extent of supporting another party, cannot be a ground to even start disqualification proceedings under Tenth schedule of the Constitution," Mr Salve told the court.
He also said a party whip is applicable only inside the house. It cannot be used for intra-party meetings -- a point which one of the judges raised earlier in response to the submissions of the Congress Chief Whip.
Appearing earlier on behalf of the Speaker, Abhishek Manu Singhvi, one of the country's sharpest legal minds, advised the rebels to read the section on the "voluntary giving up of party membership" in the Anti-Defection law.
"There is no need for formal resignation; giving up of membership can be inferred from conduct. There is no straight-jacket approach for Speaker to decide (under the constitution). There is no fixed formula. So how to take a decision is within the Speaker's domain," he said.
Mr Singhvi also said the court has no jurisdiction in the matter till the Speaker makes a decision.
"The Speaker may or may not pass a correct decision. But there cannot be any interference at the pre-order stage pre-empting that Speaker will take a wrong decision," Mr Singhvi said.
The simmering hostility between Mr Pilot and his boss, the Chief Minister blew up around July 11, triggered by police summons to Mr Pilot for investigation into what Chief Minister Ashok Gehlot called "horse-trading" to topple his government.
The Chief Minister has since said he has "evidence" that Mr Pilot has been involved in horse-trading and deal making. There have been other comments, targeting him over his "handsome" looks and "speaking good English". Today, Mr Gehlot accused his rival of being a "nikamma" – a salty term meaning a "useless" or "incompetent" person.
"Nobody knew that a person with such innocent face will do such a thing," he had added.
The court will hear the case again tomorrow.