In a major relief to the six BSP legislators in Rajasthan who merged with the Congress last year, the High Court on Monday disposed of a petition seeking their disqualification from the state Assembly while dismissing another similar petition.
Meanwhile, the Supreme Court on Monday disposed of a plea by BJP legislator Madan Dilawar challenging the merger of the BSP MLAs with the Congress, saying it had become infructuous in view of the High Court ruling.
The six MLAs had submitted an application for merger with the Congress on September 16, 2019 following which the Speaker had passed an order on September 18. Two petitions were filed last month in the High Court — by the BSP and Dilawar — seeking the quashing of the Speaker’s order.
Pronouncing its judgment on Monday, the court partly allowed the Dilawar’s writ petition to the extent that the court quashed an order of the Speaker dated July 22, also saying that it expects the Speaker to take a decision on Dilawar’s disqualification petition within three months.
The petition filed by the BSP was dismissed.
The court said that it doesn’t have jurisdiction to declare the six MLAs disqualified and that this authority rests with the Speaker of the Assembly.
“Therefore, in view of the aforesaid analysis and also in view of the aforesaid settled and unexceptional position of law, this Court is of the opinion that it does not have jurisdiction either to interfere with the order dated 18.9.2019 or, to declare the respondents no.2 to 7 to be disqualified on the plea of their defection and the decision, in this regard, rests with the Speaker only under Tenth Schedule of the Constitution of India,” the judgment pronounced by the single bench of Justice Mahendar Kumar Goyal said.
The court said it is only the final decision of the Speaker that can be subject matter of judicial review on limited parameters. Several past judgments of the Supreme Court and various High Courts were cited in the judgment pronounced on Monday.
“The court acquires jurisdiction only upon determination on the question of disqualification and not prior to that except in exceptional circumstances not obtaining in the present case,” the court said.
In its judgement, the court reached the conclusion that the order passed on September 18 last year by the Speaker is an administrative order, recording claim of merger by the BSP MLAs in his capacity as the Officer of the Legislative Assembly, and cannot be reckoned as an adjudication by the Speaker upon the claim of the respondents regarding merger of BSP with Congress.
The court, in its 54-page judgment reached the conclusion that the order was only for the purposes of carrying out suitable and necessary changes in the register containing information about the Members and other purposes such as publication of bulletin, carrying out necessary changes in sitting arrangements etc.
“Therefore, in the considered opinion of this court, the order dated 18.9.2019 fails to meet any of such criteria so as to bring it within the trappings of ‘decision’ by the Speaker on the claim of merger by the respondents no.2 to 7 and cannot be reckoned as ‘decision’,” the court said.
In partial relief to Dilawar, the court quashed an order of the Speaker dated July 22, which had rejected an application filed by Dilawar in March seeking the disqualification of these six MLAs.
The court said that the Speaker’s rejection of Dilawar’s application on the ground of violation of Rule 6(7) of the Rules of 1989, does not go to the root of the matter, cannot be sustained in the eye of law.
Even otherwise also, once, the factum of alleged defection was brought to the notice of the Speaker, he was under the constitutional obligation to adjudicate upon the same, said the judgment.
“This writ petition is partly allowed to the extent that the order dated 22.7.2020 passed by the Speaker is quashed and set aside. The Speaker is expected to take a decision on the disqualification petition filed by the petitioner within the period of three months from today,” said the judgment.
While it dismissed the petition filed by the BSP, the court also said that the party is at liberty to file a disqualification petition with the Speaker raising plea of defection of the six MLAs. If any such petition is filed, the Speaker is expected to decide the same in accordance with law without rejecting it under Rule 6(2) of the Rules of 1989, said the judgment.
Following the judgment, the Rajasthan unit of the BSP said in a statement that the party will move the Supreme Court.
During the course of the case, lawyers representing the BSP and Dilawar including senior counsels Satish Chandra Mishra and Harish Salve had argued that the merger of the six MLAs with Congress at the state-level was illegal primary because the BSP is a national party and it hasn’t merged at the national level with the Congress.
The other side, represented by senior advocates including Congress leader Kapil Sibal, had argued that the petition was not maintainable because the court didn’t have the jurisdiction on the disqualification of the legislators as it was the domain of the Assembly Speaker.
On July 30, the single judge bench had refused to stay the merger of the six MLAs and had issued notices to the Speaker and the six legislators, directing them to reply by August 11.
The BSP and Dilawar had appealed against this order before a division bench of the High Court, which had disposed of the appeals on August 6, sending it back to the single judge bench.
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