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In a relief to Sachin Pilot-led group of Congress rebel MLAs, the Rajasthan HC on Friday ordered status quo. This approach is about the disqualification notices sent by the Speaker. The HC also said that it was deferring the judgment on the petition filed by 19 rebel legislators, till the SC decides on the questions of law.

Facts of the Case

The division bench headed by Chief Justice Indrajit Mahanty had adjudicated the case. The bench reserved the verdict on the petitions filed by Rebel MLAs 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. The said extension 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 to direct accordingly. Contending that the HC cannot make such a direction to the Speaker, who is a constitutional authority, the Speaker approached the SC.

Yesterday, the SC ordered that the judgment pronounced by the HC will be subject to the orders passed by the SC. This is to be done in the petition filed by the Speaker against the HC direction to extend the time for a reply. A bench of SC observed that the matter required prolonged hearing due to serious questions relating to democracy. The Court adjourned the case until 27 July 2020.

Service of Notices by the Speaker

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 CM, 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. Mahesh alleged that rebel MLAs had attracted disqualification under 10th Schedule.

The said disqualification was based on the anti-party statements made, and refusal to attend party meetings. 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 given the pendency of the proceedings, the Speaker extended the time for a reply.

Petitioner’s Arguments

Senior Advocates Harish Salve and Mukul Rohatgi appeared for the petitioners in the HC. They argued that the petitioners had not defected or given up the membership of Congress party. They are expressing dissent against the functioning of the CM by staying within the party. Not only this, but they also stated that intra-party dissent cannot be regarded as voluntary giving up of party membership. The advocates further contended that the Speaker had no jurisdiction to issue notice invoking paragraph 2(1)(a) of the 10th schedule.

Further, it was their argument that the Speaker was acting with mala fide intention. They contended that the Speaker issued the notices on the same day of receiving complaints from the party whip. The speaker granted them with only 3 days for a reply, though the legislative rules stipulate 7 days’ time for responding to the notices. The petitioners also argued that whip was applicable only to proceedings within the House.

Thus, a notice outside the whip lacks jurisdiction for the same. Consequently, defiance of party whip directions to attend the meetings cannot attract disqualification. The petitioners asserted that the HC has powers under Article 226 to interfere with the Speaker’s action. The Courts can quash a show-cause notice if it is issued without jurisdiction.

Speaker’s Arguments

Senior Advocate, Dr Singhvi appeared for the Speaker. Dr Singhavi submitted that the Courts have restrictions in interfering with proceedings in 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. The Court placed reliance on the SC decision in Kihoto Hollohan vs. Zachillhu. Singhvi submitted that the HC cannot interfere at a stage anterior to the Speaker’s decision. The Court does not exercise supervisory jurisdiction over the Speaker of the Legislative Assembly.

Senior Advocate Kamat, appearing for the Congress Whip Mahesh Joshi. Mr Kamat submitted that the petitioners should be construed to have voluntarily left the party. This is on the basis of their conduct such as open statements against the government and the refusal to attend party meetings.

Court’s Observations

During the hearing, Chief Justice Mahanty orally observed that whip can only apply to house proceedings and not to party meetings. Also, the Chief Justice expressed surprise by stating ”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”.

Court’s Order

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, given the challenge to the constitutionality of paragraph 2(1)(a) of the Tenth Schedule.


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