The Supreme Court will today hear a petition filed by Rajasthan Assembly Speaker CP Joshi challenging the High Court decision extending the time for Sachin Pilot and 18 rebel Congress MLAs to reply to the anti-defection notice of July 14.
A bench headed by Justice Arun Mishra and comprising Justices BR Gavai and Krishna Murari will take up the matter through video conferencing.
“It is respectfully submitted that the impugned order passed by the High Court is in effect a stay on the powers of the Speaker under the Tenth Schedule to adjudicate on a disqualification petition”, said the plea through advocate Sunil Fernandes. The Speaker moved the apex court Wednesday and sought urgent hearing in the matter.
The plea urged the apex court to pass an interim ex-parte order staying the July 21 order of the Rajasthan High Court.
Speaker CP Joshi had filed a Special Leave Petition (SLP) in the Supreme Court to avert what he called a “constitutional crisis” in the state.
The plea contended that the High Court has intervened in the pending Tenth Schedule proceedings at the initial notice stage and restrained the Speaker from even calling for replies and conducting the disqualification proceedings pending against the rebel MLAs till July 24. Joshi insisted that the High Court has breached the bar imposed by the apex court in Kihoto Hollohan case against judicial intervention in matters pending before the Speaker.
“In Kihoto, a Constitution bench of this Hon’ble Court expressly held that courts cannot interdict the Speaker from proceeding ahead at the quia timet stage. The proceedings under the Tenth Schedule before the Speaker are proceedings of the Legislature and as such cannot interfered with as repeatedly held by this Hon’ble Court as envisaged under Article 212 read with para 6(2) of the Tenth Schedule”, contended the plea filed .
The scheme of Tenth Schedule, para 6(1), and para 6(2) envisions a limited interference by the courts in matters concerning the disqualification of members even where final orders of disqualification are passed.
Therefore the High Court order is ex-facie is illegal, perverse, and in derogation of the powers of the Speaker under the Constitution and hence deserve to be set aside, argued the plea.
The plea said instead of appearing before the Speaker and furnishing their comments on the allegations made in the disqualification petition, a direct challenge was made in the High Court by the rebel MLAs. “It is respectfully submitted that the notice dated July 14 was only limited to inviting comments from the Respondents (rebel MLAs) and there was nothing adverse against the Respondents. It is submitted that such a notice is not the final determination or decision on disqualification but only a commencement of the proceedings”, said the plea.
The petition contended these proceedings under the notice are in the realm of the legislative proceedings under Para 6(2) of the Tenth Schedule.
“If the final decision of the Speaker is amenable to judicial review on limited ground, it is inconceivable that the notice dated July 14 calling for comments on the disqualification is subject to judicial review. Article 212 clearly bars the challenge”, it said.
Earlier on Wednesday, announcing his decision to move the Supreme Court against the high court order at a press conference, the Rajasthan Assembly Speaker warned that the rebels were “heading for a constitutional crisis”.
Joshi said a Speaker has the complete authority to send a show-cause notice.
“Speaker’s responsibilities are well defined by the Supreme Court and the Constitution. As the Speaker, I got an application and to seek information on it, I issued show-cause notice. If show-cause notice will not be issued by the authority, then what is the work of authority?” he questioned.
“It can be judicially reviewed only later, after the Speaker’s decision,” he said, calling the rebels’ petition a “dangerous precedent” and a possible “breakdown of constitutional rules.”
In a respite for the Sachin Pilot camp for the second time, the Rajasthan High Court on Tuesday asked the Assembly Speaker not to take any action against them till Friday when it will deliver its order on their petition.
During the hearing, senior lawyer Mukul Rohatgi, representing the rebel legislators, said that “In the middle of the pandemic, only three days’ time was given to the MLAs to respond to the notice. The reading of these facts leaves no manner of doubt that the decision (to suspend MLAs) is a foregone conclusion”.
He argued that the disqualification notices by the Assembly Speaker were issued to Sachin Pilot and the MLAs on the same day of complaint and that no reasons were recorded for the same.
Rohatgi added that there is nothing to show that the Rajasthan Speaker “applied his mind” while serving the disqualification notices to the rebels. He said Speaker CP Joshi had shown a “tearing hurry” and had given no reasons while serving notices to disqualify Sachin Pilot and others after they skipped two meetings.
The hearing began last Friday but was then adjourned till Monday and the Speaker was asked not to take any action against the petitioners till Tuesday.
After Sachin Pilot and the rebel MLAs gave the second CLP meeting a miss on July 14, the Congress announced the removal of Pilot as the Deputy Chief Minister as well as the Pradesh Congress Committee (PCC) chief.
The Congress government is witnessing a major crisis after Sachin Pilot announced that the Gehlot government was in minority.
On July 12, the sulking leader had declared open rebellion against his party by claiming that he has the support of 30 MLAs.