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President of the Janata Dal (Secular) HK Kumaraswamy and Karnataka Pradesh Congress Committee President Dinesh Gundu Rao have moved the Supreme Court contending that the Court’s order of July 17 affects the Constitutional right of the Congress and the JD(S) to issue a whip.
A three-Judge Bench headed by Chief Justice of India Ranjan Gogoi had, on July 17, granted liberty to the fifteen dissident MLAs to exercise their choice to participate in the proceedings of the Assembly. The Court had categorically stated that the rebel MLAs cannot be compelled to participate in the proceedings.
It is this direction that has prompted the present impleadment applications by Kumaraswamy and Rao.
In the applications filed through advocates Sunil Fernandes and Vernika Tomar, it is stated that the Supreme Court’s order of July 17 is in the teeth of the Tenth Schedule of the Constitution of India and the Constitution Bench judgment of Kihoto Holohan v. Zachillu.
Under the Tenth Schedule, a political party has the right to issue a whip to its legislators and the exercise of this right is not subject to any condition, nor can it be subject to any restrictions by any Court, the applications aver.
The applications seek clarification that the direction of the Supreme Court does not refer to the rights of a political party to proceed under the Tenth Schedule of the Constitution of India.
“any interpretation of the July 17 order that whittles down the power of a political party to issue whip to its legislators would be in the teeth of the provisions of the Tenth Schedule of the Constitution of India.”
The applicants also argue that the July 17 order was passed without even arraying the Congress and JD(S) as respondents.
It is further contended that as per the judgment in Kihoto Holohan, para 2(1)(b) of the Tenth Schedule, which deals with disqualification of members on the ground of defection and voting against the whip or abstaining from voting, shall be made mandatory in cases of confidence motions.
The applicants have also questioned the Governor’s right to direct holding of a floor test. It is submitted that the same is in contravention of the Nabam Rebia judgment, since the House is already considering the confidence motion and debates are currently ongoing.
Both Kumaraswamy and Rao have thus sought a clarification that the Court’s order of July 17 does not refer to the rights of the political party under Para 2(1)(b) of the Tenth Schedule.
On July 10, ten rebel MLAs of the Congress and the JD(S) in Karnataka had approached the Supreme Court challenging the delay by the Speaker of State Assembly in accepting their resignations.
When the matter came up for hearing on July 11, the Court directed the Speaker of the Karnataka Legislative Assembly KR Ramesh Kumar to decide on the resignations tendered by the rebel MLAs. Hours later, however, the Speaker moved the Supreme Court seeking a recall of this order.
When the matter came up for hearing again on July 12, the Court ordered that status quo be maintained by the Speaker with respect to the resignations by rebel MLAs and the disqualification proceedings against them.
On July 17, the Court directed the Speaker of the Karnataka Legislative Assembly to decide on the resignations of the rebel Congress and JD(S) MLAs within an “appropriate time frame” while adding that rebel MLAs cannot be compelled to participate in the proceedings of the House.