New Delhi, July 20
In a setback to the nine rebel Congress legislators in Uttarakhand, the Supreme Court on Wednesday refused to put on hold their disqualification and a bar on attending the assembly session beginning on Thursday.
This would effectively exclude these former MLAs, who have since joined the BJP, from participating in the assembly debate and voting on the no-confidence motion against assembly Speaker Govind Singh Kunjwal, which they had moved along with BJP legislators.
A bench of Justice Dipak Misra and Justice Rohinton Fali Nariman said the outcome of the no-confidence motion against the Speaker would be subject to the outcome of nine disqualified lawmakers' petitions challenging their disqualification.
"we are inclined to state that if the motion, moved by the petitioners before their disqualification for the Speaker's removal, is moved any time in the assembly of Uttarakhand, the same shall be subject to final adjudication of the present special leave petition," the bench said in its order.
Directing the hearing of the petition on July 27, the bench said: "Needless to emphasise, all issues including the issue of jurisdiction, are kept open."
The Speaker, on a complaint by Congress lawmaker Indira Hridayesh, had disqualified the nine rebel lawmakers led by former Chief Minister Vijay Bahuguna. Later, the nine joined the opposition Bharatiya Janata Party.
The disqualified lawmakers moved the apex court to challenge the Uttarakhand High Court order that upheld their unseating under the anti-defection law.
At the outset of the hearing, the bench made it clear that it won't allow the disqualified lawmakers to attend the assembly session.
"Both of us are in great doubt (whether) to interfere in the proceedings of the assembly by an interlocutory order," observed Justice Misra, adding that "they can't even go..."
Leading the arguments on behalf of the nine former lawmakers, senior counsel C.A. Sundaram referred to the July 13 judgment of the Constitution Bench, saying it was "constitutionally impermissible" for the Speaker to disqualify the legislators when their motion seeking the Speaker's removal was pending.
The Constitution Bench, while restoring ousted Arunachal Chief Minister (now former) Nabam Tuki's government, said that so long the notice of resolution for the removal of the assembly Speaker was pending, it was "constitutionally impermissible" for him to act under the Tenth Schedule and disqualify the legislators under the anti-defection law.
As Sundaram used the recent judgment to contend that nine former lawmakers were disqualified by the Speaker whose removal they had sought along with the BJP MLAs, senior counsel Kapil Sibal told the bench that Arunachal Pradesh assembly Speaker has already moved a review petition seeking the recall of these observation by the Constitution Bench.
However, Sundaram said the Constitution Bench's judgment would hold the field till the review plea was decided.
Opposing the plea for a stay on the disqualification of the nine legislators, Sibal said they have already joined the BJP and if court grants them relie,f it would be for the first time in history that a BJP member becomes a Congress member by a court order.
Lawyer Abhishek Manu Singhvi told the bench that "it is first-of-its-kind (situation) where a judge (Speaker) is disabled by the potential accused (lawmaker under anti-defection law). This is a remarkable power of a potential accused (lawmaker) to disable the Speaker from taking action (under the Tenth Schedule) by moving a motion seeking his removal" before changing political loyalties.
Cautioning the bench over the potential misuse of the observation of the Constitution Bench, Sibal said the resolution seeking the removal of a Speaker was a political process and the same could not be put above the exercise of the constitutional powers by the Speaker under the Tenth Schedule.
