Six MLAs, who were elected to the Rajasthan Assembly on a BSP ticket but later merged with the Congress, have urged the Supreme Court to transfer to itself the petition pending in the high court for their disqualification for violating the party whip.
They have contended that similar petitions, raising questions on disqualification under the 10th Schedule of the Constitution, are pending before the Supreme Court and, therefore, the plea filed against them in the Rajasthan High Court should be transferred to the top court.
They said the high court cannot exercise the power of judicial review in "purely political questions" but can examine questions if they emanate from a constitutional duty or obligation.
The Bahujan Samaj Party MLAs said in their plea it would be in the interest of justice that the matter is transferred to the top court and heard together with similar petitions filed there.
Two petitions have been filed in the Rajasthan High Court, one by BJP MLA Madan Dilawar and the other by BSP National Secretary Satish Mishra.
Dilawar has challenged the merger of the BSP MLAs into Congress, questioning Assembly Speaker CP Joshi's order dismissing his complaint without allowing him to have his say.
Mishra has challenged the defection of the MLAs but they have not sought transfer of this plea to the Supreme Court.
The MLAs said to the top court that Dilawar, aggrieved by the Speaker's decision, has filed a writ petition before the high court on the ground that there was no merger of the BSP with the Congress, and hence the exception under the Tenth Schedule could not be attracted.
Dilawar and other respondents have raised questions that are similar to those already pending before the Supreme Court, the BSP legislators said in their petition to the top court.
"It is important to also note that there is an urgent need to clarify the law in respect of the scope and purport of Paragraph Four of the Tenth Schedule, to ensure that there are no conflicting judgments, involving substantial questions of interpretation of the Constitution, by an interpretation by this Court," the plea said.
It said the Tenth Schedule is applicable only to members of the legislature, and only for the purpose of disqualification of such members in the event of defection, unless exempted.
They said under the scheme of the Tenth Schedule, only in the case of happening of the merger, which is the merger of two-thirds of "the legislature party" with "another political party", the "original political party" has merged with another political party, immunizes such members of the House from disqualification.
"It is submitted that in the present fact situation, the entire legislature party of the BSP has merged with the legislature party of the INC, and therefore, the condition laid down in...Paragraph 4 (of Tenth Schedule) is satisfied to not attract disqualification," it added.
On July 30, the high court had sought the response of the Assembly Speaker and its secretary on the pleas challenging the induction of the BSP MLAs into the Congress.
Sandeep Yadav, Wajib Ali, Deepchand Kheria, Lakhan Meena, Jogendra Awana and Rajendra Gudha contested and won the 2018 assembly election on a BSP ticket but they defected to Congress in September 2019. They submitted an application for the merger on September 16, 2019, and the Speaker allowed their induction into the Congress two days later. The merger was a boost to the Ashok Gehlot-led government as the tally of the Congress increased to 107 in the house of 200.
Amid a political crisis triggered by a rebellion by Sachin Pilot and 18 other MLAs, the Speaker had moved the top court for a stay on the high court's order which had asked him to defer disqualification proceedings against the sacked deputy chief minister and the 18 others.
On July 31, the Rajasthan Congress chief whip Mahesh Joshi also moved the top court challenging the high court order asking the Speaker to defer disqualification proceedings.