The Congress on Friday moved the Supreme Court seeking a clarification on its order allowing freedom to 15 rebel Karnataka MLAs from participation in the trial of strength on the floor of the Assembly saying it whittles down the power of a political party to issue whips to its members under the anti-defection law.
Seeking impleading of himself in the capacity of President of Karnataka Pradesh Congress Committee, its President Dinesh Gundu Rao maintained that the order of the apex court on July 17 "would be in the teeth of the provisions of the Tenth Schedule of the Constitution" and the judgement of the Constitution Bench of the court in Kihoto Halashan v Zachillhu.
"It is respectuflly submitted that as a result of the order dated 17.07.2019 the constitutional rights of th4e applicant under the Tenth Schedyule are vitally affected and as cuh the instant application is moved," Rao said referring to the apex court order which said the rebel MLAs "ought not to be compelled to participate in the proceedings of the ongoing session of the House and an option should be given to them that they can take part in the said proceedings or to opt to remain out of the same".
The petition said the July 17 order was passed without even arraying the Congress Legislature Party which has 79 MLAs in the Assembly.
It said under the Tenth Schedule a political party has a constitutional right to issue a whip to its legislators.
"The exercise of this right under the Constitution is not circumscribed by an condition nor can it be subject to any restrictive orders from teh Court even prior to the issuance of the whip. More importantly, any enquiry for the purposes of the Tenth Schedule is a proceeding of the legislature of the State within the meaning of Article 212 of the Constitution," the petition contended.
It submitted that in the Kihoto Holohan v Zachillhu case, the court had interpreted para 2(1)(b) of the Tenth Schedule laid down that para 2(1) (b) has to be made mandatorily applicable in cases of a confidence motion. In the same judgement, the court had directed that the whip of the political party has to be "....so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in inc incurring the disqualification under Paragraph 2(1)(b) of the Tenth Schedule so that the member concerned has fore knowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction.