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'Whether Para 2(1)(a) Of 10th Schedule Is Violative Of Basic Structure Of Constitution': Rajasthan HC Frames 13 Questions Of Law In Sachin Pilot Case [Read Order]

LIVELAW NEWS NETWORK
24 July 2020 11:47 AM GMT

Holding the writ petition filed by Sachin Pilot-led group of rebel Congress MLAs, the Rajasthan High Court has framed 13 questions of law.

They are :

(i) Whether the judgment of the Hon'ble Supreme Court in Kihoto Hollohan Vs. Zachillhu & Ors. ,1992 SCC Supp. (2) 651, has tested the constitutionality of Paragraph 2(1) (a) of the Tenth Schedule of the Constitution of India only with the touchstone of 'crossing over' or 'defection' and the Court was never called upon to answer, much less the question of intra-party dissent?

(ii) Whether, in the facts and circumstances of the present case, Paragraph 2(1)(a) of the Tenth Schedule of the Constitution, is violative, in particular to the basic structure of the Constitution of India including the fundamental right of freedom of expression guaranteed by Article 19(1)(a) of the Constitution of India and thus void?

(iii) Whether the expression of dissatisfaction or disillusionment and the strongly worded opinions against the party leadership can be a conduct falling within the scope of Paragraph 2(1)(a) of the Tenth Schedule of the Constitution?

(iv) Whether the foundational facts based upon which the Speaker issued notice, are the facts which if not constitutionally construed in the aforesaid context, would render the provisions itself unconstitutional?

(v) Whether the manner of exercise of jurisdiction of the Speaker has to be differentiated from the existence of jurisdiction of the Speaker to commence a proceeding against any legislator under Paragraph 2(1)(a) of the Tenth Schedule of the Constitution?

(vi) Whether 'whip' as an instrument of party discipline only applies for actions expected out of legislators inside the House?

(vii) Whether the Speaker is not in a position to adjudicate upon the said question of constitutionality as raised by the petitioners in this petition?

(viii) Whether the notice issued by the Speaker is ex-facie violative of the essence of democracy and aims at throttling dissent against persons in power?

(ix) Whether by way of the instant notice, the voice of the petitioners seeking a leadership change within the party expressed in the most democratic manner is sought to be stifled and the petitioners are threatened with abdication their right to express their reservations on the functioning of such leadership?

(x) Whether the words 'voluntarily given up his membership of such political party' in Paragraph 2(1)(a) of the Tenth Schedule take within their ambit, a criticism of the Chief Minister/manner of functioning of the State unit of the party, by an MLA, outside the House?

(xi) If the answer to issue No.(x) is in the affirmative, then, would not Paragraph 2(1)(a) be violative of the basic structure of the Constitution which includes Article 19(1) (a)?

(xii) Whether the action of the Speaker including the haste in issuing notice dated 14.07.2020 is not malafide, an abuse of power, in breach of natural justice and also betrays a foregone conclusion?

(xiii) Whether the judgment of the Hon'ble Supreme Court in Kihoto Hollohans's case (supra) can be understood so as to bar the High Court from examining the aforesaid questions?

The bench comprising Chief Justice Indrajit Mahanty and Justice Prakash Gupta, which heard the matter on July 17(after-noon session), July 20(whole day) and July 21(the fore-noon session), passed an order on Friday holding the writ petition maintainable in view of the above questions of law.

The order did not touch upon the merits of the matter, and did not give any next date of listing.

The order said that the parties will be at liberty to file an application for early hearing, after the 'completion of the filing of pleadings of the parties and the intervenors'.

Till then, the Court directed that the "status quo" should be maintained with respect to the notices issued by the Speaker on July 14.

The Court also held that two of the reliefs sought in the petition were not maintainable.

One of them sought a declaration that the petitioners continued to be members of the Assembly, and other sought a declaration that the allegations do not come within the purview of Para (2) of the Tenth Schedule.

Relief To Sachin Pilot Camp: Rajasthan HC Orders Status Quo On Speaker's Notices; Defers Judgment Till SC Orders

The prayers, which were held to be maintainable by the Court, are :

  • Issue a writ of mandamus or an appropriate writ declaring clause 2(1)(a) to be violative of the basic structure of the Constitution of India and thus void.
  • Issue a writ of certiorari or direction/order in the nature of a writ or certiorari to quash and set aside the Show Cause Notice dated 14.07.2020 issued by the Hon'ble Speaker of the Rajasthan Legislative Assembly.
  • Issue a Writ, Order or Direction declaring Clause 2(1) (a) of the Tenth Schedule read with Article 191 of the Constitution of India ultra vires .

The Supreme Court is scheduled to hear on Monday, July 27, the petition filed by the Rajasthan Speaker against the July 21 order of the HC directing the extension of time for filing of reply to the notices.

Click here to download Order

Read Order



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