High Court V. House in Rajasthan: legally speaking !

In most surprise manner, yesterday 29th July 2020, Rajasthan deadlock again reached to the doorstep of Apex Court , Speaker Dr. C.P Joshi approched to the Supreme Court against Rajasthan High Court 24th July order.

Rajasthan Speaker in his special leave petition(SLP) before Supreme Court prayed for staying interim order passed by Division bench of the Rajasthan High Court and staying of further proceeding pending before High Court.

In  his SLP before Apex Court , Rajasthan Speaker termed High Court interference as judicial indiscipline and Judicial impropriety in seeking to reopen settled issue decided by the Constitution bench of the Supreme Court. It is important to mention here that Rajasthan High Court Division Bench  ordered status quo on Speaker disqualification notice till final decision of the Court which will be listed for further hearing after mention by the Council of the parties.

In this backdrop of such development question remains, Is High Court empowered to unsettle the ratio of ‘Kihoto Hollohan’ Supreme Court Constitution bench Judgment ?

The Constitution Bench of Supreme Court by majority judgment of 3:2 in the case of ‘Kihoto Hollohan’ upheld theTenth Schedule of the Constitution .

Justice M.N. Venkatachalih who has written ‘Kihoto Hollohan’ majority judgment for himself and other two Judges, in paragraph 53 of the judgment it was noted that Paragraph 2 of Tenth Schedule is valid and doesn’t violate freedom of speech and expression as enshrined in the Article 19(1)(a) of the Constitution.

Judgment further noted that Para 2 of 10th Schedule are intended to strengthen the fabric of Indian parliamentary democracy by curbing unethical and unprincipled political defection.

It is pertinent to note that Sachin Pilot Camp challenged the Para 2(1)(a) of Tenth Schedule (Provision regarding voluntarily giving up membership) being violative of ‘Basic Structure Doctrine ‘ which is already settled in Kihoto case .

Significantly Resjudicata principal enshrined in Section 11 of the clearly bar the Court to reopen the issue which is already been heard and finally decided by the Court.

Prima facie by going through settled legal principal it seems that High Court is not empowered to unsettle ‘Kihoto Hollohan ‘ on the other hand High Court is bound by the ratio of aforementioned case .

It is pertinent to note that even Supreme Court need seven Judges Constitutional  bench to revisit correctness of ‘Kihoto Hollohan’ ratio.

On the other hand disqualification proceeding under para 6(2) of Tenth Schedule is proceedings under Article 212 of Indian Constitution which bar the Court intervention.

As per settled law in ‘Kihoto Hollohan’ , judicial review of Speaker decision is not permitted prior to final decision. And Speaker is the final arbiter of whether any member of parliament or a legislature has become subject to disqualification.

Finally, who can forget infamous tussle between High Court and House famously known as U.P Assembly  Case in the year 1964 ? 

Fact as one Keshav Singh , Socialist party worker in Gorakhpur put out a pamphlet attacking local MLA, Narsingh Narayan Pandey.On MLAs complain, Assembly found guilty Keshav Singh of breach of legislative privilege and sentenced him to seven days in prison meanwhile on the sixth day of prison Keshav Singh plea against assembly order turn-up for hearing when two judges bench of Justice Nasirullah Beg and G.D Sehgal ordered the release of Keshav Singh.

Then U.P assembly passed resolution against Allahabad High Court order and issued arrest warrant against two high court judges and Keshav Singh advocate B Solomon who represented the petitioner Keshav Singh in High Court for violating the House privilege.

Then in the time of such Constitutional crisis Justice Beg and Justice Sehgal filed petition before Allahabad High Court and termed Assembly action against Judges is violative of Article 211 of the Constitution which prohibit discussion of conduct of High Court and Supreme Court judges in the House proceedings.

Finally 28 judges full bench of the Allahabad High Court restrained the government from executing arrest warrant against two judges and a lawyer however Court not given relief to Keshav Singh. However issue finally settled by the Supreme Court.

One can only hope that Supreme Court can settle question of law raised by Rajasthan Speaker in his petition .