Speaker moves SC against HC order on 19 Cong MLAs

Rajasthan assembly speaker CP Joshi moved the Supreme Court on Wednesday challenging a July 24 order by the high court ordering him to defer proceedings on the disqualification

Rajasthan assembly speaker CP Joshi moved the Supreme Court on Wednesday challenging a July 24 order by the high court ordering him to defer proceedings on the disqualification notices he issued dissident Congress legislator Sachin Pilot and 18 other MLAs.

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Joshi submitted that the high court order is in violation of legal principles laid down by the 1992 Supreme Court judgment in Kihoto Hollohan v. Zachillhu as per which courts cannot interfere with the speaker’s powers to decide a disqualification petition till he gives a final decision on such a disqualification plea.

“The order (of July 24) restraining the speaker from performing his constitutional duties under the 10th schedule (for disqualification of MLAs) is a direct intrusion by the high court into the domain exclusively reserved for the Speaker”, the petition filed through advocate Sunil Fernandes said.

The high court, by attempting to reopen the law laid down in Kihoto Hollohan committed “gross judicial indiscipline”, the plea added.

On July 24, the Rajasthan high court issued a detailed order staying action by the speaker against the rebel Congress legislators while admitting the writ petition filed the Pilot camp against the disqualification notices.

Pilot, the former deputy chief minister, is leading a rebellion in the ruling party after differences between him and the chief minister widened into a full-blown confrontation that threatens to knock the party out of power.

The high court said that it will examine the constitutional validity of para 2(1)(a) of the 10th schedule of the constitution. The 10th schedule contains provisions relating to disqualification of lawmakers for defection.

Para 2(1)(a) lays down that voluntarily giving up membership of the political party on whose ticket the lawmaker was elected, will be a ground for disqualification from the house.

The Pilot camp had challenged the validity of para 2(1)(a) arguing that merely voicing opinion against party leadership does not amount to “voluntarily giving up membership” and para 2(1)(a), to the extent it prohibits expression of opinion, violates freedom of speech under Article 19 of the Constitution.

“The constitutional validity of 10th schedule including para 2(1)(a) had been specifically challenged before the Supreme Court in Kihoto and the contention was negatived. In these circumstances, the high court could not have acted as appellate court over the correctness of the decision in Kihoto,” the speaker submitted.

The Supreme Court should ensure that the authorities under the constitution, including the judiciary, exercise its jurisdiction within their boundaries and function within their respective ‘Lakshman Rekhas’, Joshi contended.

This would be the second instance of Joshi knocking the doors of the Supreme Court. He had earlier filed an appeal before the Supreme Court on July 22 seeking a stay on a July 21 order of the high court which had asked him to defer action on disqualification notices till July 24. He also sought a stay on the high court proceedings in that plea.

But the Supreme Court on July 23 declined the request paving way for the high court to pass its order on July 24 rendering Joshi’s petition before the apex court infructuous (ineffective). He had, subsequently, withdrawn that petition on July 27.

Joshi submitted on Wednesday that the July 24 order of high court is violative of Article 212 of the Constitution as per which courts cannot inquire into the proceedings of the legislature.

The notice issued by him to the Pilot camp on July 14 is purely procedural and in the realm of legislative proceedings under Article 212 and courts cannot review or examine the same, he contended.

“The proceedings before the speaker till the final decision are in the nature of proceedings in the House and are not subject to judicial review… only the final decision of the speaker is amenable to judicial review and that too on limited grounds,” the petition said.

The order of the High Court is a direct interference in the ‘proceedings of the House’ which is prohibited under Article 212 of the Constitution, the plea added.

Pilot and other MLAs had approached the high court on July 15 challenging the speaker’s notice which had asked the 19 MLAs to furnish an explanation by July 17 on why they should not be disqualified from the assembly for their conduct which the Congress party alleged was detrimental to the interest of the party and showed their intention to quit the party.

The speaker’s notice was based on the disqualification petition filed by Chief Whip of Congress party, Mahesh Joshi. Joshi in his plea had cited the absence of the MLAs from two Congress Legislature Party meetings, held on July 13 and 14, despite specific instructions to attend the same as the main reason which showed the intention of the MLAs to leave the Congress party.

Pilot and other dissident MLAs have maintained that they never had the intention to leave the Congress party and were merely exercising their right to criticize party leadership and the functioning of the chief minister. In a democratic setup, voicing disagreement with the policies or decisions taken by the party does not amount to acting against the interests of the party so as to lead to disqualification, they had said in their petition.