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Sibal: Unfortunate HCs not following law laid down by SC on 10th Schedule


Kapil Sibal _file


New Delhi: Senior advocate Kapil Sibal contended before the Supreme Court on Monday that it is unfortunate the High Courts are not following the law laid down by the apex court on the Tenth Schedule. Sibal, who represented Rajasthan Assembly Speaker C P Joshi, made these remarks seeking the court's permission to withdraw the petition.

The Rajasthan Speaker filed a plea through advocate Sunil Fernandes challenging the Rajasthan High Court jurisdiction to intervene in the disqualification proceedings against sacked Deputy Chief Minister Sachin Pilot and 18 MLAs. A bench comprising Justices Arun Mishra, B R Gavai and Krishna Murari allowed the withdrawal of the Speaker's plea against the High Court's order asking him to defer till July 24 the disqualification proceedings against Pilot and 18 rebel Congress MLAs. While withdrawing the plea, Sibal said it is unfortunate that High Courts are not following the law laid down by the apex court on the Tenth Schedule.

Sibal contended before the bench that the Rajasthan High Court has passed a detailed order in connection with the disqualification proceedings pending before the Speaker. "We will contest it there and if need arises, we will again come back to the top court", said Sibal, citing before the bench that the appeal has become infructuous. The top court had declined to stay the earlier High Court order passed last week asking the Speaker to defer the disqualification proceedings till Friday.

The plea contended that the High Court of Rajasthan has intervened in the pending Tenth Schedule proceedings at the initial notice stage and restrained the Speaker from even calling for replies and conducting the disqualification proceedings pending against the rebel MLAs till July 24.

"In Kihoto, a Constitution bench of this Hon'ble Court expressly held that Courts cannot interdict the speaker from proceeding ahead at the quia timet stage. The proceedings under the Tenth Schedule before the Speaker are proceedings of the Legislature and as such cannot be interfered with as repeatedly held by this Hon'ble Court as envisaged under Article 212 read with para 6(2) of the Tenth Schedule", contended the plea.

On Friday, the Rajasthan High Court in its 32-page verdict framed 13 questions for consideration, and most of them are on the lines of stifling dissent and intra-party democracy, as observed by the apex court. The High Court has said the writ petitions are maintainable dismissing the preliminary objections by the Speaker, though it did not give any date to take up the matter.

The High Court ordered the status quo to be maintained in the disqualification case against Sachin Pilot and 18 other rebel Congress MLAs. Therefore, the court has barred the Speaker from acting on the July 14 disqualification notices.

On Thursday, a bench comprising Justice Arun Mishra, Justice B.R. Gavai and Justice Krishna Murari had queried Sibal, "Voice of dissent cannot be suppressed ...then democracy will shut. After all they have been elected by the people. Can they not express their dissent?"

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