Rajasthan Congress Legislative Party Chief Whip Moves SC Against HC Decision To Stay State Assembly Proceedings [Read Petition]

Through its Order, dated July 24, the High Court had restrained the Speaker of the Rajasthan Assembly from moving ahead with the disqualification proceedings that had been initiated by the Chief Whip, Mahesh Joshi.

By ordering status quo and directing the Speaker to put the disqualification proceedings on hold, the petitioner argues that the High Court has effectively put a stay on the power of the Speaker, CP Joshi, to exercise his powers. Thus, in light of the Kihoto Hollohan judgment, argues the Chief Whip, the decision of High Court is illegal and unconstitutional.

"…it is respectfully submitted that the impugned order in so far as it directs 'status quo' in para 53 is concerned, which is in the nature of a quia timet order, is exfacie unconstitutional, illegal and in the teeth of the law laid down by this Hon'ble Court in Kihoto Hollohan v. Zachillhu (1992) Supp 2 SCC 651."

Further, it is argued that the petition filed by Sachin Pilot and the other 18 MLAs was not maintainable as it challenged the show cause notice issued to them, though there was no adverse Order against them.

"…it is respectfully submitted that the Writ Petition filed by the (Rebel MLAs) was totally non maintainable and premature. Prayer B of the Writ sought to challenge only a notice dated 14.07.2020 issued by the Speaker calling for comments of the Respondents on the disqualification petitions filed against them under Para 2(1) (a) of the Tenth Schedule. There was absolutely no adverse order of any kind against the Respondents and as such the Writ Petition in so far as prayer B is concerned was completely non maintainable", argues the petitioner.

Additionally, Mahesh Joshi contends that the challenge to the constitutionality of Paragraph 2(1)(a) of Tenth Schedule is also not maintainable.

"These prayers were also ex facie non-maintainable as the validity of the Tenth Schedule was extensively considered, deliberated and upheld by this Hon'ble Court in Kihoto's Hollohan (supra). Even other wise, mere pendency of a challenge to a statutory/constitutional provision in a Writ Petition cannot and could not have the effect of negating the provision itself as has been sought to be done by the (High Court Order)."

Furthermore, the petitioner highlights that the Apex Court had laid down that judicial review would not be available at any stage prior to the final decision taken by the speaker and, in this light, it is urged that the High Court overstepped its jurisdiction in passing an order for status quo.

Moving on, the petitioner has averred that a case of prima facie defection has been made out against the rebelling Sachin Pilot camp, given that they indulged in "anti-party activities".

The petition, filed by VKC Law Offices, conclusively asserts that the question of disqualification is one that is to be decided by the speaker.

"It is submitted that whether the Petitioner has made out a case for disqualification under Para 2(1)(a) of the Tenth Schedule is a pure and simple question of fact which the Speaker would decide. The Hon'ble High Court could not have prejudged and sat as an appellate authority over the allegations made in the disqualification Petitions."

This petition has been moved just days after the Rajasthan Assembly Speaker withdrew his plea from Supreme Court, which was against the High Court's direction restricting him from going ahead with the disqualification proceedings. In that plea, it was argued that the High Court had exceeded its powers and interfered in a matter which was exclusively within the Speaker's jurisdiction.

The petition is drawn by Advocates Rajesh Inamdar, Javedur Rahman, Aditya Bhai and Amit Pai.