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SC defers hearing to Thurs to let Rajasthan HC first take the call
KT NEWS SERVICE. Dated: 8/12/2020 11:22:37 AM
NEW DELHI, Aug 11: To let the Rajasthan High Court's single judge take a call on Tuesday at 2 pm on the plea of BJP MLA Dilawar, the Supreme Court agreed to hear on Thursday the challenge to the High Court refusing to interfere in the merger of six Bahujan Samaj Party (BSP) MLAs in the ruling Congress. The Rajasthan High Court too, however, adjourned the matter to Thursday.
The Bench of Justices Arun Mishra, BR Gavai, and Krishna Murari agreed to wait for the High Court ruling after taking up for hearing a petition challenging the decision of the Rajasthan High Court to dispose of the pleas filed by MLA Madan Dilawar and the BSP, assailing the BSP MLAs joining the Congress en masse.
In a related development, Advocate Amit Pai, representing the six ex-BSP MLAs, withdrew the transfer petition to move the matter from the Rajasthan High Court to the Apex Court. The withdrawn petition had sought a transfer of Dilawar's petition from the Rajasthan High Court to the Supreme Court on the grounds that similar matters are pending before the Apex Court.
In September last year, Assembly Speaker CP Joshi had accepted the merger of six BSP MLAs into the Congress. Chief Minister Ashok Gehlot was desperate till Monday as his majority in the Assembly depended on the support of these six MLAs, but he is no longer concerned in view of the rebel Congress MLAs led by Sachin Pilot returning to the party's fold to have a clear majority.
Senior Counsel Harish Salve, representing Dilawar, told the Court that the September 2019 order of the Speaker was assailed before the High Court, given that the Supreme Court held that the question of merger of parties cannot be decided in abstract.
He argued that the disqualification against these MLAs was dismissed on technical grounds. On being asked why the Apex Court must delve into the merits of the case, Salve argued that it has been held in the past that orders cannot be passed under Para 4 of the Tenth Schedule of the Constitution.
The BSP itself has also opposed the merger of six of its MLAs with the Congress party. Advocate Satish Chandra Misra, representing the party, said that the MLAs sought the merger and the same was ordered for by the Speaker without jurisdiction. Placing reliance on the Supreme Court's judgments, Misra argued that a merger has to be preceded by a split under Rule 4 of the Rajasthan Assembly Rules.
Misra, who is also leader of BSP in the Rajya Sabha, told the Court that this condition of Rule 4 was not fulfilled, and a petition seeking disqualification of these six BSP MLAs was dismissed under Rule 8, which permits only members of the House to move such petitions.
After hearing the parties, the Bench adjourned the case till August 13 in order to allow the High Court to pass orders.
The Rajasthan Assembly Speaker was represented by Senior Counsel Kapil Sibal, while Senior Advocate Sidharth Luthra represented one of the six ex-BSP MLAs.
Speaker Joshi's move to accept the merger of six BSP MLAs with the Congress party last year came under challenge before the High Court. A Single Judge Bench of the High Court, while issuing notice to the Speaker in the petition filed by BJP, had directed for a reply to be given by August 11.
The order of the Speaker, however, was not stayed by the Single Judge Bench, and the six ex-BSP MLAs were not restrained from attending the proceedings of the House as Congress legislators. This was appealed before the Division Bench, which also refused to stay the Speaker's decision allowing the functioning of the BSP MLAs as Congress functionaries and remitted the matter to the Single Judge.
It is the case of the petitioners before the Supreme Court that the merger of the six BSP MLAs with the Congress is bad in law and unconstitutional as it goes against the principles laid down in various cases. The petition says: "The Petitioner assailed the order before the Division Bench wherein the impugned order came to be passed. The Petitioner assails the order as the order dated 18.09.2019 is non –est and is unsustainable in the eyes of law due to the dicta laid down by this Hon’ble Court."