The five-page order pronounced by a Bench led by Chief Justice of India Ranjan Gogoi on July 17 gave a clear indication to the 15 rebel Congress-Janata Dal (Secular) legislators led by Pratap Gouda Patil that they could bail out of the trust vote.

The Karnataka Congress Legislature Party moved the Supreme Court on Friday saying the court's July 17 order allowing 15 dissident MLAs liberty to opt out of Assembly session whittles down the power of a political party to issue a whip and is in the teeth of the Tenth Schedule (anti-defection law) of the Constitution.

The application filed by the party through Karnataka Pradesh Congress Committee president Dinesh Gundu Rao said the court may not handicap the constitutional rights of a political party and restrict the powers provided under the Tenth Schedule of the Constitution.

“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 any condition nor can it be subject to any restrictive orders from the 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 (courts not to inquire into proceedings of the Legislature) of the Constitution,” the application said.

The application sought a clarification from the court that the part in the July 17 order giving the 15 MLAs their freedom to opt out of the Assembly session was not actually meant to interfere with the rights of a political party to proceed under clause 2(1)(b) of the Tenth Schedule.

The five-page order pronounced by a Bench led by Chief Justice of India Ranjan Gogoi on July 17 gave a clear indication to the 15 rebel Congress-Janata Dal (Secular) legislators led by Pratap Gouda Patil that they could bail out of the trust vote. The free run given by the court to the dissident legislators may even translate into their defying party whip without the fear of disqualification for defection under clause 2 (b) of the Tenth Schedule of the Constitution

“It is respectfully submitted that as a result of the July 17 order the constitutional rights of the applicant (Rao) under the Tenth Schedule are vitally affected… The order was passed without even arraigning the Congress Legislature Party, which presently has 79 MLAs, in the Karnataka Legislative Assembly,” the application said.

The application referred to the Constitution Bench judgment in Kihoto Holohan v Zachillhu while interpreting para 2(1)(b) of the Tenth Schedule. The application said the Constitution Bench had clearly indicated that voting or abstaining from voting contrary to party whip would incur disqualification. eom