Karnataka Congress moved the Supreme Court Friday contending that its July 17 order on the resignation of 15 rebel Congress-JD(S) MLAs was coming in the way of the party issuing whip to its legislators on the ongoing trust vote.
The application filed by Karnataka Congress chief Dinesh Gundu Rao sought clarification on the order which said the 15 rebel MLAs cannot be compelled to participate in the ongoing Assembly proceedings, saying that the direction compromises with the party's right to issue whip.
It said the apex court order "whittles down" the power of a political party to issue whip to its MLAs as it has a constitutional right to do so and the court can't restrict that.
The plea further stated that the order was passed without involving the Congress legislature party, which presently has 79 MLAs in the Karnataka Assembly.
The apex court on July 17 passed the order on the plea of the 15 MLAs in which the Speaker K R Ramesh Kumar and Chief Minister H D Kumarswamy were made respondents.
The application by state Congress was filed at a time when the Assembly was debating the confidence motion moved by Kumaraswamy.
Karnataka Governor Vajubhai Vala on Thursday set 1.30 pm on Friday as the deadline to prove the majority. It ended without the Assembly taking up the voting on the motion of confidence to decide the fate of the shaky Congress-JD(S) government.
In the Assembly, the ruling coalition vociferously questioned the Governor's power to issue such a direction, with Kumaraswamy citing a Supreme Court verdict that the Governor cannot act as ombudsman of the legislature.
The Chief Minister said he would not criticise the Governor and requested the Speaker to decide whether the governor can set a deadline.
In the application filed in the apex court on Friday, the state Congress said, "It is respectfully submitted that as a result of the order dated July 17, the constitutional rights of the applicant under the Tenth Schedule are vitally affected and as such the instant Application is being moved," it said.
It submitted that under the Tenth Schedule of the Constitution, a political party has a 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 of the Constitution," it said.
The Congress, while referring to a judgement delivered by a constitution bench of the apex court, submitted that any interpretation of the order of July 17 "which whittles down the power of a political party to issue a whip to its legislators would be in the teeth of the provisions of the Tenth Schedule of the Constitution".
It sought a clarification that the direction passed on July 17 does not refer to the rights of a political party to proceed under the Tenth Schedule.
The Karnataka Congress also said since it was not a party in the pending pleas of rebel MLAs in which July 17 order was passed, it should be impleaded as a party in the matter.
On July 17, the apex court had said that 15 rebel Congress-JD(S) MLAs in Karnataka "ought not" to be compelled to participate in the proceedings of the ongoing session of the state Assembly and an option should be given to them as to whether they wanted to take part or stay out of it.
A bench headed by Chief Justice Ranjan Gogoi had said that the Speaker will decide on the resignation of the 15 MLAs within such time-frame as considered appropriate by him.
The bench, also comprising justices Deepak Gupta and Aniruddha Bose, had said the speaker's discretion in deciding on the MLAs' resignations should not be fettered by the court's directions or observations and he should be left free to decide the issue.
The apex court also said the Speaker's decision be placed before it.
"We also make it clear that until further orders, the 15 members of the Assembly 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 proceedings or opt to remain out of the same. We order accordingly," the bench had said in its three-page order.