Rajasthan Assembly Speaker moves SC challenging HC's status quo order

Terming the high court order as a “direct interference” in the proceedings of the House, the plea said, “It is submitted that the impugned order interdicts the petitioner/Speaker from acting under the Tenth Schedule at the stage of notice itself and restrains him from even proceeding to call for replies/comments from the respondents (MLAs)”. “Further the issues/questions sought to be raised by the respondents (MLAs) before the high court already stand settled by a catena of decisions of this court.

Rajasthan Assembly Speaker Wednesday moved the Supreme Court challenging the July 24 order of the high court which had directed maintenance of status quo on the disqualification notice issued to 19 dissident Congress MLAs, including sacked deputy chief minister Sachin Pilot. In his petition, Speaker C P Joshi, has sought stay on the Rajasthan High Court's order contending that it is “ex-facie unconstitutional” and is a “direct intrusion” into the domain exclusively reserved for the Speaker under the Tenth Schedule of the Constitution.

The plea, settled by senior advocates Kapil Sibal and Vivek Tankha, has also sought stay on further proceedings in the matter pending before the High Court. The plea, filed through advocate Sunil Fernandes, claimed that the high court’s order is a “direct interference” in the ‘proceedings of the House' under the Tenth Schedule which is prohibited under Article 212 of the Constitution.

“It is further submitted that the impugned order is completely non reasoned and does not reveal any reasons for passing the status quo order,” the plea said. This is the second round of litigation in the apex court in the Rajasthan political issue as on July 27, the top court had allowed the Assembly Speaker to withdraw his plea against the high court's July 21 order asking him to defer till July 24 the disqualification proceedings against these MLAs.

The assembly Speaker had issued the notice to these MLAs on July 14 after the ruling Congress had complained to him that the legislators had defied a whip to attend two legislature party meetings. The high court had passed the order on the plea filed by these MLAs who have challenged the disqualification notice issued to them. In the fresh appeal filed in the top court, the Speaker has said that the July 24 order is “in the teeth” of law declared by the apex court in the 1992 Kihoto Hollohan case, in which it was held that courts can't intervene in the disqualification proceedings undertaken by the Speaker under the Tenth Schedule to the Constitution.

“The impugned order restraining the Speaker from performing his constitutional duties under the Tenth Schedule is a direct intrusion by the high court into the domain exclusively reserved for the Speaker under the Tenth Schedule of the Constitution,” the plea said. Terming the high court order as a “direct interference” in the proceedings of the House, the plea said, “It is submitted that the impugned order interdicts the petitioner/Speaker from acting under the Tenth Schedule at the stage of notice itself and restrains him from even proceeding to call for replies/comments from the respondents (MLAs)”.

“Further the issues/questions sought to be raised by the respondents (MLAs) before the high court already stand settled by a catena of decisions of this court. The constitutional validity of Para 2(1)(a) stands concluded by the decision of the constitution bench in Kihoto Hollohan”, it said. The plea said that the July 24 order directing status quo in relation to the proceedings before the Speaker under the Tenth Schedule is “constitutionally impermissible” and is directly in contravention of the settled legal position.

“The instant case is admittedly not a case where there is an interim disqualification. The Speaker has only issued a notice under Rule 7(4) of the Rajasthan Assembly Disqualification Rules, 1989 calling for comments. There is no adverse order of any kind passed against the Respondents”, the plea said. It added that in these circumstances, the high court order restraining the Speaker from performing his constitutionally ordained duties is “ex-facie illegal”.

“It is humbly submitted that whether non-attendance of meeting, criticism of the original party constitutes grounds for the Speaker to decide whether conduct falls under Para 2(1)(a) is for the sole consideration of the Speaker,” the appeal said. It added that the Speaker is yet to decide on the particular facts and circumstances of each MLAs and the same shall be done on a case to case basis.

“However, the impugned order precludes the Speaker from deciding on whether the respondents (MLAs) have incurred disqualification,” it said, adding, that it is well settled legal position that ordinarily courts in judicial review do not entertain a challenge at the notice stage. “The person aggrieved has to face the enquiry or proceedings and it is only the final determination which is amenable to judicial review. It is relevant to note that there is absolutely no determination of the issue by the Speaker at this stage at all. The notice had merely called for comments from the respondents (MLAs). No cause of action accrued to the respondents to file the writ petitions which are premature and ought to have been dismissed at the threshold,” it said.

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