Rajasthan Speaker Dr. CP Joshi has moved the Supreme Court, challenging the July 24 Order of the Rajasthan High Court, which admitted the writ petition filed by 19 rebel Congress MLAs led by Sachin Pilot, and directed the Speaker to maintain "status quo", till the time the Court heard the petition next.
The plea, filed by Advocate-on-Record Sunil Fernandes, states that the Rajasthan HC's order, interdicting the Speaker from proceeding to even adjudicating the disqualification petitions pending before him under the Tenth Schedule of the Constitution of India, "is a direct intrusion into the domain exclusively reserved for the Speaker under the Tenth Schedule of the Constitution".
Further, the Order is "ex-facie unconstitutional and in the teeth of the law declared in "Kihoto Hollohan v. Zachillhu" as there exists a catena of decisions of the Supreme Court wherein constitutional validity of Para 2(1)(a) has been upheld. It is also a direct interference in the "proceedings of the House" under Para 6(2) of the Tenth Schedule, which is prohibited under Article 212 of the Constitution.
The plea states that the main grounds for setting outside the impugned July 24 Order are as follows:
1. It is in the teeth of law laid down in Paras 110 and 111 the Kihoto Hollohan judgement.
"It is respectfully submitted that the impugned 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 in relation to quia timet actions under the Tenth Schedule".
Therefore, as per Paras 110 and 111 of the 1992 Judgement, even against the final orders of the Speaker, there are only limited grounds which are available to the Court to interfere by way of judicial review. In wake of the passages, only the final decision of the Speaker is amenable, and the only exception lies if there is an interim order passed by the Speaker, disqualifying or suspending a member.
In the instant case, the Speaker has only issued notice under Rule 7(4) of the Rajasthan Assembly Disqualification Rules, 1989.
2. Notice issued by the Speaker is a Proceeding in the House under Para 6(2) of the Tenth Schedule read with Article 212, and is therefore, immune from judicial interference.
As the notice issued by the Speaker is merely a procedural step, and not a final determination or decision on disqualification, the Court is restrained from interfering in the same.
"In view of the mandate of Para 6(2) of the Tenth Schedule read with Article 212, the notice dated 14.07.2020 calling for comments on the disqualification could not have been challenged at all till the final decision is reached by the Speakers. 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 anterior to decision itself. Article 212 clearly bars any such challenge."
3. Mere challenge to Constitutional validity of Para 2(1)(A) on the anvil of Basic Structure Doctrine, cannot ipso facto result in Para 2(1)(A) being effaced from the Constitution.
The plea submits that the impugned Order effectively effaces Para 2(1)(a) of the Tenth Schedule from the Statute book and the same is not permissible.
"Para 2(1)(a) has been construed judicially in several decisions and it has been held that any conduct by which inference can be drawn that the person concerned has left the membership of the party would attract the disqualification of Para 2(1)(a). This has to be determined by the Speaker in the facts and circumstances of each case".
Therefore, the High Court has "acted in gross judicial indiscipline and judicial impropriety in seeking to reopen settled issues decided by a Constitution Bench of this Hon'ble Court in Kihoto", by claiming that it violates the basic structure or freedom of speech and expression.
4. Measure of what conduct invites a disqualification under the Tenth Schedule is the Sole Domain of the Speaker and Jurisdiction cannot be Curtailed at the Notice Stage itself.
The plea avers that the Speaker is yet to decide on the particular facts and circumstances of each Petitioner, on a case to case basis. Therefore, the impugned Order precludes the Speaker from deciding so and ordinarily, Court in judicial review, cannot entertain a challenge at the notice stage.
"The person aggrieved has to face the inquiry or proceedings and it is only the final determination which is amendable to judicial review".
Accordingly, the Special Leave Petition, challenging the July 24 Order of the Rajasthan High Court has been filed before the Supreme Court.
On July 14, Rajasthan Speaker Dr. CP Joshi had served notices as per the Rajasthan Legislative Assembly (Disqualification) Rules, 1989, on 19 dissident MLAs, including Pilot, amidst their rebellion against Chief Minister, Ashok Gehlot. They were initially given time till 1 PM on July 17, to submit their replies.
Meanwhile, the 19 MLAs approached the Rajasthan HC on July 16, challenging the Speaker's action. A Rajasthan High Court Bench of Chief Justice Indrajit Mahanty and Justice Prakash Gupta, initiated the hearing for the matter, and "requested" the Speaker to defer the decision on the disqualification proceedings vide its Order dated July 21.
Consequently, this Order was challenged by the Rajasthan Speaker before the Supreme Court, and on July 23, a Bench headed by Justice Arun Mishra heard the matter. While refusing the stay the proceedings in High Court, the Bench stated that the judgement that shall be passed by the HC will be subject to the orders of the SC. Justice Mishra further noted that "serious questions relating to democracy" were involved.
On July 24, the Rajasthan HC passed its Order, holding the 19 rebel Congress MLA's petition to be maintainable, and directed the Rajasthan Speaker to maintain status quo, till the time the Court heard the petition next. However, the Court did not grant any next date of hearing. In light of this Order, the Rajasthan Speaker withdrew its petition before the Supreme Court, with Senior Advocate Kapil Sibal, appearing on behalf of the Speaker, stating that they had to weigh their legal options on what could be done next.