A division bench of the Gujarat High Court on Tuesday dismissed an application moved by the Congress, seeking disqualification of Radhanpur MLA Alpesh Thakor. The petition was moved ahead of the Rajya Sabha by-polls scheduled on July 5. The bench found the petition to be devoid of merit.
As stated in the order, the court of Justices SR Brahmbhatt and AP Thaker considered it “crystal clear” that the Tenth Schedule of the Constitution gives the Speaker powers to decide the disqualification of any member. The court also upheld, after perusal of prior apex court judgments that judicial review should not cover any stage prior to the making of a decision by the Speaker/Chairman.
The petition, moved by Congress whip Ashwin Kotwal last week, against Thakor and the state assembly speaker, ahead of the Rajya Sabha bypoll, sought his disqualification and alleged that his alignment with the ruling party resulted in immunity from disqualification by the Assembly Speaker and that he had been operating as a member of the legislative assembly despite his resignation earlier in April. However, Thakor contended this during the hearing of this petition by saying his resignation pertained to his abdication from office-bearer posts within the party and not objectively a resignation from the party itself.
Counsel Hriday Buch who was representing the petitioner Kotwal argued that as per the membership (rules) of the INC, resignation from any post was a resignation from the membership of the party. Buch also contended that in the present case, as the Speaker has not initiated any action for considering the application of the petitioner since the past two months, the inaction on the Speaker’s part warrants judicial scrutiny.
During the course of the hearing, counsel Hriday Buch who was representing Kotwal sought the court’s direction to limit a time-frame for the Speaker within which he must act on the disqualification application and had relied on certain rules as under disqualification on the ground of defection, citing the rule to be a directory in nature.
The court noted that such rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the powers conferred on him and it was only procedural in nature, violation of which would amount to an irregularity in procedure but is otherwise immune from judicial scrutiny.
Advocate General Kamal Trivedi, representing the Assembly Speaker, mentioned during closing arguments on Monday, that the Speaker will decide the matter as expeditiously as possible and try to adjudicate it within the period of three/four months. The polls are being held after two seats fell vacant following the election of BJP president Amit Shah and Union Minister Smriti Irani to the Lok Sabha