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New Delhi, July 22, 2020
The Supreme Court on Thursday will hear a plea by Rajasthan Assembly Speaker C. P. Joshi challenging the Rajasthan High Court decision extending the time for Sachin Pilot and 18 rebel Congress MLAs to reply to the anti-defection notice of July 14.
A bench headed by Justice Arun Mishra and comprising Justices B R Gavai and Krishna Murari will take up the matter through video conferencing.
"It is respectfully submitted that the impugned order passed by the High Court is in effect a stay on the powers of the Speaker under the Tenth Schedule to adjudicate on a disqualification petition," said the plea through advocate Sunil Fernandes.
The Speaker moved the apex court Wednesday and sought urgent hearing in the matter.
The plea urged the apex court to pass an interim ex-parte order staying the July 21 order of the Rajasthan High Court.
The plea contended that the High Court has intervened in the pending Tenth Schedule proceedings at the initial notice stage and restrained the Speaker from even calling for replies and conducting the disqualification proceedings pending against the rebel MLAs till July 24. Joshi insisted that the High Court has breached the bar imposed by the apex court in Kihoto Hollohan case against judicial intervention in matters pending before the Speaker.
"In Kihoto, a Constitution bench of this Hon'ble Court expressly held that courts cannot interdict the Speaker from proceeding ahead at the quia timet stage. The proceedings under the Tenth Schedule before the Speaker are proceedings of the Legislature and as such cannot interfered with as repeatedly held by this Hon'ble Court as envisaged under Article 212 read with para 6(2) of the Tenth Schedule," contended the plea filed .
The scheme of Tenth Schedule, para 6(1), and para 6(2) envisions a limited interference by the courts in matters concerning the disqualification of members even where final orders of disqualification are passed.
Therefore the High Court order is ex-facie is illegal, perverse, and in derogation of the powers of the Speaker under the Constitution and hence deserve to be set aside, argued the plea.
The plea said that, instead of appearing before the Speaker and furnishing their comments on the allegations made in the disqualification petition, a direct challenge was made in the High Court by the rebel MLAs. "It is respectfully submitted that the notice dated July 14 was only limited to inviting comments from the Respondents and there was nothing adverse against the Respondents. It is submitted that such a notice is not the final determination or decision on disqualification but only a commencement of the proceedings", said the plea.
The plea contended these proceedings under the notice are in the realm of the legislative proceedings under Para 6(2) of the Tenth Schedule. "If the final decision of the Speaker is amenable to judicial review on limited ground, it is inconceivable that the notice dated July 14 calling for comments on the disqualification is subject to judicial review. Article 212 clearly bars the challenge," said the plea.