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Rajasthan Congress Chief whip Mahesh Joshi on Friday moved the Supreme Court against the High Court order asking the speaker to defer disqualification proceeding against sacked deputy Chief Minister Sachin Pilot and 18 MLAs, saying they indulged in the 'grossest form of defection' by making 'grave and sinister attempts' to topple the Ashok Gehlot government.
The chief whip, who moved the top court two days after the assembly speaker C P Joshi filed the appeal against the July 24 Rajasthan high court order, was very critical of the judicial intervention into the disqualification proceedings and said that the order 'was ex facie unconstitutional' and amounted to an intrusion into the domain of speaker's power under the Tenth Schedule of the Constitution.
'The impugned order of the High Court directing status quo (on disqualification proceedings against dissident MLAs) has the effect of emasculating the provision of the Tenth Schedule of the Constitution itself,' said the plea which was settled by senior advocate Devadutt Kamat and filed through lawyer Varun Chopra.
Justifying the disqualification plea moved before the Speaker, the party chief whip referred to the alleged sequence of events relating to Pilot and his loyal MLAs and said, 'That grave and sinister attempts were being made by the Respondents to break the ranks of the Indian National Congress (INC) and topple the duly elected INC Government in the State of Rajasthan.
'The Respondents (Pilot and others) had deliberately absented themselves from two crucial CLP meetings held on July 13 and July 14 despite repeated reminders and notices and the media was rife with vociferous demands by the Respondents calling for a floor test against their own Government.
'The Respondents had even gone as far as alleging that the INC Government had cheated the people of Rajasthan.'
Assailing the high court order, the plea said that the order of 'status quo' on disqualification process against the MLAs was 'ex facie unconstitutional, illegal and in the teeth of the law laid down' by this court in the Kihoto Hollohan case in which the power of the speaker has been discussed.
'In Kihoto's case, this Court unequivocally held that judicial review was not available at a stage prior to the final adjudication by the Speaker acting under the Tenth Schedule. Thus, the impugned 'status quo' order is in the teeth of the Constitution Bench judgment of this court,' it said.
It said that Speaker's power under the Tenth Schedule has been held to be 'exclusive' and 'the interlocutory orders by courts interdicting the Tenth Schedule proceedings are impermissible'.
It said moreover, only show cause notices were served and no adverse order of any kind against the 19 MLAs were passed and the plea of Pilot and his lawmakers was not maintainable before the high court.
The Congress leader has sought 'ex parte stay' on the July 24 order and also on the proceedings pending before the high court on the plea of Pilot and others.
It also said the constitutional validity of the Para 2(1) (a) of the Tenth Schedule, which deals with the situation in which a lawmaker can be held to have given up the membership of a legislative party, cannot be challenged in the high court and its has to be heard by a Constitutional bench of five judges in the Supreme Court.
'It is further submitted that a Bench of not less than 5 Judges of the Supreme Court is the only forum competent to hear a matter involving 'a substantial question of law pertaining to the interpretation of the Constitution', and therefore, the Division Bench of the high court ought not to have entertained the petition under Article 226,' the plea said.
Earlier, the speaker had moved the top court seeking the stay on the high court's order and had said that it was 'ex facie unconstitutional' and was a 'direct intrusion' into the domain exclusively reserved for him as the Speaker under the Tenth Schedule.
The speaker had filed the second petition on July 27, after the top court had allowed him to withdraw his earlier plea against the high court's July 21 order asking him to defer till July 24 the disqualification proceedings against these MLAs.
The assembly Speaker had issued the notice to these MLAs on July 14 after the ruling Congress had complained to him that the legislators had defied a whip to attend two legislature party meetings.