The Speaker of the Rajasthan Legislative Assembly has filed an appeal in the Supreme Court questioning the decision of the Rajasthan High Court asking him to defer the decision on the disqualification of 19 rebel MLAs of Congress party, till July 24 when the High Court will pronounce order on the petitions challenging notices issued to those 19 MLAs including Sachin Pilot, by the Speaker.
A three-judge bench comprising Justices Arun Mishra, B R Gavai and Krishna Murari to hear the matter tomorrow.
The Speaker, CP Joshi, in his plea has contended that the proceedings under the Tenth Schedule of the Constitution before the Speaker are proceedings of the Legislature and as such cannot be interfered with as repeatedly held by the apex court as envisaged under Article 212 read with para 6(2) of the Tenth Schedule.
In support, the plea cites a decision of the Constitution bench of the Supreme Court in Kihoto Hollohan v. Zachillhu wherein it was held that Courts couldn’t interdict the speaker from proceeding ahead at the quia timet stage, i.e restrain wrongful acts which have not yet commenced. In particular, the plea makes reference to para 10 of the said decision which reads as follows0
“110. … judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings.”
“It is inconceivable that the notice dated calling for comment on the disqualification is subject to judicial review”, the plea filed by the Speaker states.
The plea, which has been filed through Advocate-on-Record Sunil Fernandes, therefore, says that the order of the High Court is ex-facie is illegal, perverse, and in derogation of the powers of the Speaker under the Constitution.
Apart from praying to set aside the decision of the High Court, the Speaker has also prayed to stay further pending proceedings in the HC.
A total of 19 MLAs from Congress party including Sachin Pilot had approached the Rajasthan High Court against the notice issued to them on July 14 by the Speaker on disqualification petitions moved by Congress against those 19 MLAs inter- alia alleging that the they by their actions had given up the membership of Congress.
While reserving the order on 19 MLAs plea, the HC on July 21 ordered as follows-
“In view of above directions, we therefore, further request the Hon’ble Speaker, who has been pleased to extend the period for filing reply by the writ petitioners till 5.30 p.m. as of today i.e. 21.07.2020, to extend the said period till the delivery of orders by this Court on 24/07/2020 and we direct accordingly The matter shall be listed on 24.07.2020. The parties are directed to act accordingly”
MLAs plea had asserted that not attending two party meetings could not tantamount to fall within the purview of Tenth Schedule of the Constitution.
Further, it was contended that Sachin Pilot had issued a statement that he had no intention of leaving Congress party.
Appearing for MLAs, Senior Advocate Harish Salve contended, “Issuing disqualification notice for inner party dissent is a violation of freedom of speech of the legislator.” He added that whip couldn’t be issued when the assembly is not in session.
On the other hand, Senior Advocate Abhishek Manu Singhvi, on behalf of the Speaker, argued that the Courts had no jurisdiction over the disqualification of any member. He added that until the speaker decides, the Courts have no jurisdiction.