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The High Court agreed to make the Union of India a party to the case after an application was filed by one of the MLAs seeking the Centre's impleadment.
The Rajasthan High Court today ordered that status quo be maintained on the show cause notice issued by the Speaker of the Legislative Assembly to Sachin Pilot and the other rebel Congress MLAs (Prithviraj Meena v. Hon'ble Speaker & Ors).
Before pronouncing the verdict, the Bench of Chief Justice Indrajit Mahanty and Justice Prakash Gupta agreed to make the Union of India a party to the case after an application was filed by one of the MLAs seeking the Centre's impleadment. A separate order was passed to this effect.
MLA Prithviraj Meena had filed an application seeking impleadment of the Union of India on grounds that the petition against the Speaker's decision also challenged a provision under the Tenth Schedule.
Senior Advocate Devadatt Kamat had raised strong objection to the impleadment of the Centre in the matter. However, the Court noted in its order,
"In view of the order that we intend to pass today, we are of the considered view that allowing the application for impleadment, in no manner, is prejudicial to the interests of any party."
Status quo will be maintained on the issuance of notice to the MLAs until the Court hears the Centre and decides the matter. The order states,
Rajasthan High Court
The Bench also stated that prayers (A) and (B) of the amended writ petition filed by the Pilot faction - calling for Paragraph 2(1)(A)of the Tenth Schedule to be deemed violative of the Basic Structure of the Constitution, and for the show cause notice to be quashed - would be deliberated upon. The prayers state thus:
(A) Issue a Writ of Mandamus or an appropriate writ declaring clause 2[a] to be violative of the basic structure of the Constitution of India and thus void.
(B) Issue a Writ of Certiorari or Direction/Order in the nature of a Writ of Certiorari to quash and set aside the Show Cause Notice dated 14.07.2020 issued by the Hon’ble Speaker of the Rajasthan Legislative Assembly;
However, the Court made it clear that it would not look into prayers (C) and (D) - calling for an order from the Court to uphold the status of the rebel MLAs as members of the Rajasthan Legislative Assembly, and praying that the Court rule that the actions of the MLAs do not qualify as defection under the Tenth Schedule. These prayers read as follows:
(C) Issue a Writ of Mandamus or a Direction/Order in the nature of a Writ of Mandamus declaring/upholding the status of the Petitioners as Members of the Rajasthan Legislative Assembly- the House on account of them continuing to be members of the Indian National Congress as per the Explanation (a) to Para(2) of the Tenth Schedule of the Constitution of India;
(D) Issue a Writ of Mandamus or Direction/order in the nature of a Writ of Mandamus declaring that alleged actions of the Petitioners as Members of the Rajasthan Legislative Assembly do not come within the purview of disqualification envisaged under Para (2) of the Tenth Schedule read with Article 191 of the Constitution of India;
The order reads:
"So far as prayers (C) and (D) are concerned, the same are beyond the jurisdiction of this Court and therefore, the said prayers are hereby rejected."
After taking into consideration the contentions raised by all parties, the Court has framed the following questions for determination:
(i) Whether the judgment of the Hon’ble Supreme Court in Kihoto Hollohan Vs. Zachillhu & Ors. ,1992 SCC Supp. (2) 651, has tested the constitutionality of Paragraph 2(1) (a) of the Tenth Schedule of the Constitution of India only with the touchstone of ‘crossing over’ or ‘defection’ and the Court was never called upon to answer, much less the question of intra-party dissent?
(ii) Whether, in the facts and circumstances of the present case, Paragraph 2(1)(a) of the Tenth Schedule of the Constitution, is violative, in particular to the basic structure of the Constitution of India including the fundamental right of freedom of expression guaranteed by Article 19(1)(a) of the Constitution of India and thus void?
(iii) Whether the expression of dissatisfaction or disillusionment and the strongly worded opinions against the party leadership can be a conduct falling within the scope of Paragraph 2(1)(a) of the Tenth Schedule of the Constitution?
(iv) Whether the foundational facts based upon which the Speaker issued notice, are the facts which if not constitutionally construed in the aforesaid context, would render the provisions itself unconstitutional?
(v) Whether the manner of exercise of jurisdiction of the Speaker has to be differentiated from the existence of jurisdiction of the Speaker to commence a proceeding against any legislator under Paragraph 2(1)(a) of the Tenth Schedule of the Constitution?
(vi) Whether ‘whip’ as an instrument of party discipline only applies for actions expected out of legislators inside the House?
(vii) Whether the Speaker is not in a position to adjudicate upon the said question of constitutionality as raised by the petitioners in this petition?
(viii) Whether the notice issued by the Speaker is ex-facie violative of the essence of democracy and aims at throttling dissent against persons in power?
(ix) Whether by way of the instant notice, the voice of the petitioners seeking a leadership change within the party expressed in the most democratic manner is sought to be stifled and the petitioners are threatened with abdication their right to express their reservations on the functioning of such leadership?
(x) Whether the words ‘voluntarily given up his membership of such political party’ in Paragraph 2(1)(a) of the Tenth Schedule take within their ambit, a criticism of the Chief Minister/manner of functioning of the State unit of the party, by an MLA, outside the House?
(xi) If the answer to issue No.(x) is in the affirmative, then, would not Paragraph 2(1)(a) be violative of the basic structure of the Constitution which includes Article 19(1) (a)?
(xii) Whether the action of the Speaker including the haste in issuing notice dated 14.07.2020 is not malafide, an abuse of power, in breach of natural justice and also betrays a foregone conclusion?
(xiii) Whether the judgment of the Hon’ble Supreme Court in Kihoto Hollohans’s case (supra) can be understood so as to bar the High Court from examining the aforesaid questions?