CP Joshi with Supreme Court
CP Joshi with Supreme Court

All Constitutional authorities must exercise jurisdiction within Lakshman Rekha: Rajasthan Speaker moves Supreme Court against Raj HC order

Rajasthan Assembly Speaker CP Joshi has assailed the order passed by Rajasthan High Court restraining the Speaker from proceeding against Sachin Pilot and other MLAs on the grounds of being in the teeth of Xth Schedule.

The Speaker of the Rajasthan Assembly, CP Joshi, has moved the Supreme Court against the order passed by the Rajasthan High Court in the case concerning disqualification notice served on Sachin Pilot and 18 other MLAs.

The High Court, in its order had effectively restrained the Speaker from proceeding against Pilot and other MLAs and this "direction" of the High Court is in teeth of the Tenth Schedule and legal principle laid down in the Kihoto Hollohan case, Joshi's plea has contended.

Last updated

Assailing this order, the Speaker has averred that it is a well settled legal principle laid down by a Constitution Bench of the Supreme Court in Kihoto Hollohan case that the Courts cannot interfere in the Tenth Schedule proceedings considering that the same falls within the domain of proceedings of the House. The petition submits,

“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.”

As such, the order of the Rajasthan High Court is ex facie illegal, perverse, and in contravention of the provisions of the Constitution, it is said.

The notices issued by the Speaker on July 14 to Pilot and other MLAs were only for the purpose of seeking their response as regards initiating disqualification proceedings. There was nothing adverse or prejudicial against the Respondents in these notices, the plea says.

Moreover, the issuance of notice being part of the proceedings of the House is protected under the cover of Article 212 of the Constitution of India and is immune to judicial interference, it is argued.

“If the final decision of the speaker is amenable to judicial review on limited ground, it is inconceivable that the notice dated 14.07.2020 calling for comments on the disqualification is subject to judicial review. Article 212 clearly bars the challenge.”
The petition filed by the Speaker says.

The scheme of the Tenth Schedule envisions a limited scope of judicial review or intervention in the matters pertaining to disqualification of members. Even after final orders as regards disqualification are passed, both, the Supreme Court as well as High Courts, have a limited scope for intervention.

The only grounds for judicial interference are made out when the disqualification orders are prima facie mala fide or in violation of principles of natural justice, or marred by patent irregularity or is perverse. The petition says that none of these grounds apply in the instant case given that the proceedings are at a preliminary stage of merely issuing notice.

Therefore, the Court overstepped its jurisdiction, it is claimed by the Speaker, who says that the order passed by the High Court goes not only against the Tenth Schedule but also against the precedent laid down by the Supreme Court itself.

“This Hon’ble Court as the sentinel on the qui vive has a duty to ensure that the all the authorities under the Constitution exercise their jurisdiction within the boundaries and respective ‘Lakshman Rekha’ envisaged by the Constitution itself. Judiciary was never expected under the Tenth Schedule to interfere in the manner it has done in the instant case resulting in this constitutional impasse.”

The Speaker has sought an urgent hearing in this case.

The plea is filed through Advocate Sunil Fernandes and is settled by Senior Advocates Kapil Sibal and Vivek Tankha.

Yesterday, the High Court had reserved its verdict in the challenge to the show cause notice issued by the Speaker of the Legislative Assembly to Sachin Pilot and other rebel Congress MLAs. The High Court had stated that no coercive action is to be taken against Pilot and the MLAs till July 24, on which date the order will be pronounced. The order was reserved by a Bench of Chief Justice Indrajit Mahanty and Justice Prakash Gupta.

Last updated

Bar and Bench - Indian Legal news
www.barandbench.com