New Delhi: Rajasthan Congress Chief Whip Mahesh Joshi has moved the Supreme Court against the Rajasthan High Court’s order asking the speaker to defer disqualification proceeding against Sachin Pilot and 18 other Congress MLAs, calling the order illegal and unconstitutional.
A Special Leave Petition has been filed challenging the interim order of the high court (Prithvi Raj Meena & Ors. vs Hon’ble Speaker, Rajasthan Legislative Assembly & Ors) restraining Speaker of the Rajasthan Legislative Assembly from proceeding further in the disqualification proceedings initiated by the Petitioner under Para 2(1)(a) of the Tenth Schedule.
According to the petitioner, the impugned order in so far as it directed ‘status quo’ is in the nature of a quia timet (Latin for ‘because he fears or apprehends’) order, is ex facie unconstitutional, illegal and in the teeth of the law laid down by this Hon’ble Court in Kihoto Hollohan vs Zachillhu (1992).
The petition has also questioned the maintainability of the respondent’s prayer before the High Court, questioning of constitutional validity of Para 2(1)(a) of Tenth Schedule calling it ex facie non-maintainable as the validity of the Tenth Schedule was extensively considered, deliberated and upheld by the apex court in its judgement in case of Kihoto Hollohan. Mere pendency of a challenge to a statutory or constitutional provision in a writ petition cannot and could not have the effect of negating the provision itself.
It has added that an order directing status quo has the effect of emasculating the provision of para 2(1)(a) of the Tenth Schedule of the Constitution itself.
The petitioner has stated that the judgement in the case of Kihoto Hollohan has limited the scope of judicial review under Article 136, 226 and 227 to orders passed by the Speaker under Para 6 of the Tenth Schedule to jurisdictional errors only making it clear that judicial review was not available at a stage prior to the adjudication by the Speaker.
It said that Speaker’s power under the Tenth Schedule has been held to be “exclusive” and “the interlocutory orders by courts interdicting the Tenth Schedule proceedings are impermissible.”
According to the petitioners, the High Court by entertaining the writ petition, at the stage when the Speaker is yet to decide the disqualification petition under Para 6 of the Tenth Schedule, has exceeded its jurisdiction and therefore the impugned interim order deserves to be set aside.
Previously, the speaker had moved the Apex court asking for a stay on the high court’s order calling it ex-facie unconstitutional and a direct intrusion into the domain exclusively reserved for him as the Speaker under the Tenth Schedule.
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The second petition was filed on July 27 by the Speaker after Supreme Court had allowed him to withdraw his earlier plea against the high court’s July 21 order asking the Speaker to defer the disqualification proceedings against these MLAs till July 24.
-India Legal Bureau