A Supreme Court Bench led by Justice Arun Mishra is scheduled to hear on Thursday an appeal filed by the Rajasthan Speaker’s office challenging the State High Court order to defer anti-defection proceedings against former Deputy Chief Minister Sachin Pilot and 18 breakaway Congress MLAs till July 24.
The other two judges on the Bench are Justices B.R. Gavai and Krishna Murari. The virtual court hearing will begin after 11 a.m.
Mr. Pilot and the other legislators have filed a caveat petition in the court, saying “nothing should be done” without notifying them first.
In a steady progression of events on Wednesday, Speaker C.P. Joshi’s office filed the special leave petition, through advocate Sunil Fernandes, three minutes to noon on Wednesday and within a day of the High Court order. Shortly after the petition was filed, senior advocate Kapil Sibal, while appearing in another case, happened to complain to Chief Justice of India (CJI) Sharad A. Bobde about the lack of a proper mechanism to mention cases for urgent hearing in the current virtual court system. He said his team had been trying hard, but without success, to mention the Rajasthan Speaker’s case for an early hearing.
The CJI told Mr. Sibal that he would apprise the court Registry and see if the case could be put up before a Bench. By evening, the case was listed before Justice Mishra’s Bench.
“Lakshman Rekha”
The petition said the High Court crossed the “Lakshman Rekha” by asking the Speaker to put off his decision on the disqualification notices issued to the 19 dissident legislators on July 14. The High Court order was an affront to the powers of the Speaker. It was “illegal and perverse” and “destroys the delicate balance envisaged by the Constitution between the legislature and the judiciary”, it stated.
The Speaker said the High Court’s interim order granting extended time to Mr. Pilot and the other MLAs to file their replies to the July 14 anti-defection notices amounted to violation of Article 212 (courts not to inquire into the proceedings of the legislature).
“The notice dated July 14 is a proceeding in the House and immune from judicial interference at that stage. The notice was only limited to inviting comments from the Respondents [Mr. Pilot and other MLAs] and there was nothing adverse against them at that stage. A notice is much prior to any final determination or decision on disqualification. The proceedings, including the notice, are in the realm of the legislative proceedings under Paragraph 6(2) of the Tenth Schedule,” the Speaker’s office argued.
It said judicial review of an ongoing anti-defection proceedings was limited.
Kihoto Hollohan case
The petition referred to the Constitution Bench judgment of the top court in the Kihoto Hollohan case in 1992 in this context.
“Judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings,” the Speaker's office quoted from the 28-year-old verdict.
Also read: The Hindu’s Editorial on Rajasthan crisis
The dissident MLAs had challenged the constitutionality of Paragraph 2(1)(a) of the Tenth Schedule which makes “voluntarily giving up membership of a political party” liable for disqualification. The MLAs had argued that the provision infringed their right to dissent.
But the Speaker’s office countered that Paragraph 2 (1)(a) of the Tenth Schedule was the law of the land. A mere challenge to its constitutionality cannot efface it from the statute book.
The Speaker's office finally asked the Supreme Court whether a “non-maintainable, premature” writ petition by 19 dissident MLAs can be turned into a “Damocles sword hanging over the head of a Tenth Schedule proceedings”.
