Rajasthan Congress chief whip moves SC against HC order on MLA’s disqualification process

New Delhi, August 1: Congress chief whip in the Rajasthan Legislative Assembly Mahesh Joshi on Friday moved the Supreme Court against a State High Court direction to the Speaker to maintain status quo in the disqualification proceedings initiated against ousted Deputy Chief Minister Sachin Pilot and 18 other dissident MLAs under the anti-defection law.

Mr. Joshi said the High Court order on July 24 violated a Constitution Bench judgment of the Supreme Court in the Kihoto Hollohan of 1992, The Hindu reported. 

The verdict had categorically held that courts should not intervene in disqualification proceedings prior to a final decision from the Speaker. Judicial review of disqualification proceedings was very limited.

Mr. Joshi said the High Court, however, had intervened at the stage of notice in the disqualification action and even before any harm befell Mr. Pilot and other legislators. Mr. Pilot and other had jointly moved the High Court against the anti-defection notices issued by the Speaker on July 14. The writ petitions filed by Mr. Pilot and the others were “premature and non-maintainable”.

“There was absolutely no adverse order of any kind against the respondents [Pilot and other 18 MLAs]”, the petition said. It argued that by challenging the constitutionality of Paragraph 2(1)(a) of the Tenth Schedule, which mandates that “voluntarily giving up membership of party” amounts to defection, Mr. Pilot was attempting to “emasculate” the anti-defection law itself.

“The writ petition filed by the respondents seek to raise the question of constitutional validity of Para 2(1)(a) of Tenth Schedule. These prayers were also ex facie non-maintainable as the validity of the Tenth Schedule was extensively considered, deliberated and upheld by the Supreme Court in Kihoto Hollohan… Even otherwise, 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”, the petition argued.

The chief whip’s appeal follows closely on the heels of the one filed by Speaker C.P. Joshi, represented by advocate Sunil Fernandes, which said the “status quo” order of the High Court had crossed the ‘Lakshman Rekha’ between the respective domains of the judiciary and the legislature.

“Judiciary was never expected under the Tenth Schedule to interfere in the manner it has done in the instant case resulting in encroachment by the High Court in the field exclusively reserved for the Speaker”, the plea contended. 

It said the Supreme Court, as the “sentinel on the qui vive”, should repair the situation and restore the Principle of Separation of Powers. 

https://www.thehindu.com/news/national/other-states/rajasthan-congress-chief-whip-moves-sc-against-hc-order-on-mlas-disqualification-process/article32240203.ece