In a relief to Sachin Pilot-led group of Congress rebel MLAs, the Rajasthan High Court on Friday ordered status quo on the disqualification notices sent by the Speaker.
The High Court also said that it was deferring the judgment on the petition filed by 19 rebel legislators, till the Supreme Court decides on the questions of law.
The status quo order essentially means that the Speaker will not be able to proceed further on the notices under Tenth Schedule of the Constitution to disqualify the dissident MLAs, even if they do not submit their replies to it.
The HC on Friday also allowed the application filed by the petitioners to add Union of India as a respondent to the case in view of the challenge to the constitutionality of paragraph 2(1)(a) of the Tenth Schedule.
It was on July 21 that the division bench comprising Chief Justice Indrajit Mahanty and Justice Prakash Gupta had reserved the verdict on the petitions filed by 19 Congress rebel MLAs led by Sachin Pilot against the disqualification notices sent by the Speaker. While doing so, the bench had 'requested' the Speaker to extend the time for submitting replies to the notices - which was to expire at 5.30 PM on July 21 - till the delivery of the pronouncement of the judgment on July 24. After making such a 'request', the bench said in the order 'we direct accordingly'.
Contending that the HC cannot make such a direction to the Speaker, who is a constitutional authority, the Speaker approached the Supreme Court.
Yesterday, the Supreme Court ordered that the judgment pronounced by the HC will be subject to the orders passed by the SC in the petition filed by Speaker against the HC direction to extend the time for reply. A bench headed by Justice Arun Mishra of SC observed that the matter required "prolonged hearing" due to the "serious questions relating to democracy" and adjourned the hearing to July 27.
It was on July 14 that the Speaker, Dr C P Joshi, served the notices on the 19 dissident MLAs, including Pilot, amid their rebellion against Chief Minister, Ashok Gehlot. They were initially given time till 1 PM, July 17 to submit the replies.
The basis of the notices was the complaint filed by Mahesh Joshi, the Congress Party Whip, who alleged that rebel MLAs had attracted disqualification under Tenth Schedule of the Constitution with their anti-party statements and refusal to attend the party meetings on July 13 and 14, defying the whip's directives.
Meanwhile, the 19 MLAs approached the High Court on July 16, challenging the Speaker's action. The Court started hearing the matter on Friday, and in view of the pendency of the proceedings, the Speaker extended the time for reply.
Senior Advocates Harish Salve and Mukul Rohatgi, appearing for the petitioners in the HC, had in essence argued that the petitioners had not defected or given up the membership of Congress party. They are expressing dissent against the functioning of the Chief Minister, by staying within the party. Stating that intra-party dissent cannot be regarded as voluntary giving up of party membership, they contended that the Speaker had no jurisdiction to issue notice invoking Paragraph 2(1)(a) of the Tenth Schedule of the Constitution.
It was their further argument that that Speaker was acting with "mala fides". They contended that the Speaker issued the notices on the same day of receiving complaint from the party whip, Mahesh Joshi, and granted only 3 days time for reply, though the legislative rules stipulate 7 days time for responding to the notice.
The petitioners also argued that whip was applicable only to proceedings within the House, and therefore, defiance of party whip's directions to attend the party meetings cannot attract disqualification proceedings.
The petitioners asserted that the High Court has powers under Article 226 to interfere with the Speaker's action, even before a decision has been taken. Courts can quash a show-cause notice if it is issued without jurisdiction, or in excess of jurisdiction, or is a colourable exercise of power, or is issued with mala fides, or in violation of the principles of natural justice (Detailed report of the arguments of Salve and Rohatgi may be read here and here)
On the other hand, Senior Advocate Dr Abhishek Manu Singhvi, appearing for the Speaker, submitted that Courts have restrictions in interfering with proceedings within the house. Article 212 of the Constitution prescribe that the legality of house proceedings cannot be called into question. The proceedings for disqualification are deemed to be house proceedings as per Para 6(2) of 10th Schedule. Relying on the SC decision in Kihoto Hollohan vs Zachillhu, Singhvi submitted that the Courts cannot interfere at a stage anterior to the Speaker's decision. A Speaker of the Legislative Assembly is not like any other tribunal over which the HC exercises supervisory jurisdiction, he submitted.
Senior Advocate Devadatt Kamat, appearing for the Congress Whip Mahesh Joshi, submitted that submitted that the petitioners should be construed to have voluntarily left the party from their conducts such as open statements against the government and the refusal to attend party meetings.
During the hearing, Chief Justice Mahanty orally observed that whip can only apply to house proceedings, and not to party meetings.
Also, when the Chief Justice expressed surprise when he was told that two of the petitioners were subsequently suspended for anti-party activities.
"You say these members have voluntarily given up their membership of the party. Now you have issued suspension against them. The assumption behind suspension is that they are members. Either they are members of your party, or not members. It cannot be both ways", the Chief Justice remarked.