The Supreme Court will hear on Thursday a plea by the speaker of Rajasthan legislative assembly, CP Joshi, challenging the July 21 order of the Rajasthan high court asking him to defer till July 24, action on notices he issued to Sachin Pilot and 18 dissident Congress legislators, as the first step in their disqualification process.
Joshi said in his plea that the high court order restraining the speaker of the assembly from continuing with disqualification proceedings is in violation of settled legal principles and an intrusion into the exclusive domain of the speaker.
“The Supreme Court has a duty to ensure that the all the authorities under the Constitution exercise their jurisdiction within the boundaries and respective ‘Lakshman Rekha’ envisaged by the Constitution itself. Judiciary was never expected under the 10th schedule to interfere in the manner it has done in the instant case resulting in this constitutional impasse,” the plea filed through advocate Sunil Fernandes said.
“We need to see if a mere show-cause notice (issued to the MLAs) on a petition (submitted by chief whip Mahesh Joshi) is beyond the speaker’s authority,” Joshi said earlier in the day in a press conference in Jaipur, during which he said he would approach the apex court.
Meanwhile, Pilot and the 18 MLAs also filed a caveat before the Supreme Court on Wednesday, which means they will have to be heard by the Supreme Court before any order can be passed.
“The law on this aspect is settled since a long time. In 1992, a five-judge constitution bench of the Supreme Court in Kihoto Hollohan’s case upheld the validity of the 10th Schedule (which deals with disqualification of law makers for defection) of the Constitution and said that courts cannot pass any stay order on proceedings before the speaker. The order of Rajasthan high court stays the disqualification proceedings before the speaker, which is in conflict with the Kihoto judgment and, hence, we have approached the Supreme Court to stay the high court order”, Fernandes said.
That case stemmed from disqualification of some MLAs of the Nagaland Legislative Assembly and crystallised many principles regarding the powers of the speaker.
In his press conference, Joshi too referred to the case, Kihoto Hollohan vs Zachillhu and Others, dating back to 1992, and that in it, the Supreme Court ruled that till the speaker takes a decision on disqualification applications, injunction orders aren’t passed related to members against whom applications are pending. “I am disappointed with the court’s directions,” he added. “This matter is of urgent nature. The order has reduced my constitutional authority, which is prima facie against the apex court’s decision.”
In that case, the top court ruled that the judicial review should not cover any stage prior to the making of a decision by the speaker/chairman. No interference would be permissible at an interlocutory stage of the proceedings, the court said then.
Joshi’s petition emphasises that.
“In view of the aforesaid, the (high court) order is ex-facie illegal, perverse, and in derogation of the powers of the Speaker under the Constitution and hence deserve to be set aside,” it said.
The Rajasthan high court, on Tuesday, directed the speaker not to take any action against Pilot and other MLAs till July 24.
This order was passed after Pilot and the other MLAs had approached the high court on July 15, challenging the speaker’s notice which had asked them to furnish an explanation by July 17 on why they shouldn’t 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.
“I am bound to pass orders on these applications as a constitutional authority,” Joshi said in the press conference.
Pilot and Rajasthan chief minister Ashok Gehlot have been at odds since the Congress government came to power in 2018. Gehlot was made CM while Pilot had to settle for the post of Deputy CM. Gehlot blamed Pilot for the party’s rout in the Lok Sabha elections in Rajasthan last year; Vaibhav Gehlot, the chief minister’s son, lost from Jodhpur in the election. Pilot, in turn, believed that he had no powers, with even appointments in ministries under him being made by Gehlot.
The tussle became public earlier this month after Rajasthan police sought to question Pilot over allegations of attempting to pull down the Congress government in Rajasthan. Pilot was eventually sacked as deputy CM.
The speaker’s notice to Pilot was based on the disqualification petition filed by the chief whip of the Congress in Rajsthan, Mahesh Joshi. Joshi, in his plea, cited the absence of the MLAs from two Congress legislature party meetings, held on July 13 and 14, despite specific instructions to attend it. This, he claimed, showed their intention to leave the Congress.
Pilot and the other dissident MLAs have maintained they never had the intention to leave the Congress party and were exercising their right to criticise the party leadership and the functioning of chief minister Ashok Gehlot. In a democratic set-up, voicing disagreement with policies or decisions made by the party doesn’t amount to acting against the interests of the party, so as to lead to disqualification, they said in their petition before the high court.
“Kihoto Hollohan is very specific that no quia-timet actions (injunctions to prevent wrongful acts) can be entertained. The speaker under the 10th schedule, may act as a tribunal, but judicial review is available only after the final judgment. Courts do not get into the internal functioning of legislatures is the principle of law since Bradlaugh v Gosset (UK judgment of 1884) and Keshav Singh case (of 1964) in India”, senior counsel Sanjay Hegde told HT.
The matter will be heard by a three-judge bench headed by justice Arun Mishra and also comprising justices BR Gavai and Krishna Murari.
“The petition by the speaker is pre-mature since the honourable high court has only reserved its order. It is only appropriate that the party to the case wait for the high court order before approaching the Supreme Court in appeal,” Pilot’s lawyer S Hariharan told HT.