Supreme Court Allows Rajasthan Speaker to Withdraw SLP Challenging HC Order

The speaker's counsel informed the top court that the petition had become infructuous.

Jaipur: The Rajasthan assembly speaker C.P. Joshi withdrew his special leave petition (SLP) challenging the Rajasthan high court order passed on July 21 restraining him from “calling replies and conducting disqualification proceedings” against 19 rebel Congress MLAs, including Sachin Pilot.

Kapil Sibal informed the judges that because the apex court did not stay the HC order of July 21, as prayed in the SLP, the high court had proceeded to pass a detailed order on July 24.

“The July 21 HC order which is the subject matter of challenge in the SLP has ‘merged’ with the HC’s subsequent order of July 24, and therefore, this SLP has become infructuous,” Joshi’s counsel told Justices Arun Mishra, B.R. Gavai and Krishna Murari, who were hearing the matter.

The judges allowed the prayer to withdraw the SLP and Joshi may consider filing a fresh SLP and is “keeping all grounds open”, according to sources.

According to an Indian Express report, the Congress party’s leaders are divided on taking the legal route to quash Pilot’s rebellion. With chief minister Ashok Gehlot demanding the governor to commence an assembly session and hold a floor test, some leaders are of the view that the ‘fight has to be on the floor of the house’.

The report said that the dominant view in the party was that the high court’s July 24 order need not be challenged immediately in the top court.

Meanwhile, Rajasthan governor Kalraj Mishra returned for the second time a file from the cabinet seeking to convene an assembly session. He sought ‘additional information and clarifications’, according to reports.

What the SLP said

In the SLP, Joshi had raised the following grounds before the apex court:

Since the speaker has not yet decided on the disqualification petition moved by the Gehlot government against the rebel MLAs, and had merely given them notice to submit their responses, the SLP stated that the prayers of these MLAs in their petition before the HC partake the clear character of quia timet (to restrain an action that has not yet commenced), which is “wholly impermissible.”

It further submitted that the notice was “only limited to inviting comments from the MLAs” and no adverse action had been initiated against them.

“Such a notice is not the final determination or decision on disqualification but only a commencement of the proceedings,” the SLP reads.

Citing the seven-judge bench decision of the Supreme Court in Pandit M.S.M. Sharma v. Sri Krishna Sinha, it added that a notice calling for response on disqualification cannot be subjected to judicial review, when the final decision of the speaker on disqualification itself is amenable to judicial review.

“No Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business,” the SC had held in Pandit M.S.M. Sharma.

It added that according to the scheme of the Tenth Schedule of the Indian Constitution, even after the speaker passes the final order, there are limited grounds for the courts to interfere, such as, principles of
natural justice have been violated, order is malafide, patently perverse or alleged irregularity. “None of which applies in the present case as the disqualification petition is at a preliminary stage,” the petition states.

It said that the high court order is a “stay” on the powers of the speaker to adjudicate on a disqualification petition, granted under the Tenth Schedule.

Pointing out that the speaker is the persona designata under the Indian Constitution, having “exclusive, non-transferable, and non-delegable” powers to adjudicate on the matters concerning disqualification, the SLP further submitted that the rebel MLAs’ challenge to the constitutional validity of Para 2(1)(a), cannot be a ground for constricting the power of the speaker.

The petition submitted that the HC order be stayed to protect the dignity of constitutional authorities.

“The impugned order which is in (a)direct contravention Para 6(2) of the Tenth Schedule; and (b) direct contravention to the law laid down by this Hon’ble Court in para 109 and 110 of the Kihoto (supra) is liable to be immediately stayed so that the dignity of Constitutional authorities envisaged by the Constitution is protected,” reads the petition.

The SLP concluded that the Supreme Court has a duty to ensure that the all the constitutional authorities exercise their powers within their respective ‘Lakshman Rekha’ (boundaries) envisaged by the Constitution.

“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 warranting the instant Special Leave Petition which is being filed with an urgent request to take up the matter at the earliest convenience,” mentions the SLP.