Anti Defection Law

Judicial intervention in Anti-defection Proceedings

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Tenth Schedule

Mains level : Issues over Judicial discretion in Anti-defection

A Supreme Court Bench is scheduled to hear an appeal filed by the Rajasthan Assembly Speaker’s office challenging the State High Court order to defer anti-defection proceedings against former Deputy CM.

Try these questions:

Q. “The anti-defection law works best as an insurance against violation of the people’s mandate for a party, but it cannot be made a tool to stifle all dissent.” Discuss.

—–

Q.Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection? (CSP 2014)

(a) Second Schedule

(b) Fifth Schedule

(c) Eighth Schedule

(d) Tenth Schedule

What is the issue?

  • The petition said the HC has crossed its jurisdiction by asking the Speaker to put off his decision on the disqualification notices issued to dissident MLAs.
  • The HC order was an affront to the powers of the Speaker.
  • The High Court’s interim order granting extended time to rebel MLAs to file their replies to anti-defection notices amounted to a violation of Article 212 (courts not to inquire into the proceedings of the legislature).

Backed by Tenth Schedule

  • The petition said that judicial review of ongoing anti-defection proceedings was limited.
  • Notice is much prior to any final determination or decision on disqualification.
  • The proceedings, including the notice, are in the realm of the legislative proceedings under Paragraph 6(2) of the Tenth Schedule, the Speaker’s office argued.

Citing the Kihoto Hollohan case

  • The petition referred to the Constitution Bench judgment of the top court in the Kihoto Hollohan case in 1992 in this context.
  • Judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a prior action would not be permissible.
  • Nor would interference be permissible at an interlocutory stage of the proceedings, the verdict says.

Must read:

Kihoto Hollohan Order (1992)

What does the dissident MLAs have to say?

  • The dissident MLAs had challenged the constitutionality of Paragraph 2(1)(a) of the Tenth Schedule which makes “voluntarily giving up membership of a political party” liable for disqualification.
  • The MLAs had argued that the provision infringed their right to dissent.
  • But the Speaker’s office countered that Paragraph 2 (1)(a) of the Tenth Schedule was the law of the land.
  • A mere challenge to its constitutionality cannot efface it from the statute book.

 


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