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Judicial review can’t be available prior to Speaker’s decision

Topics Covered: Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Judicial review can’t be available prior to Speaker’s decision

  • Rajasthan Speaker CP Joshi has served notices to 19 Congress MLAs including Sachin Pilot asking them why they cannot be disqualified. The MLAs have time until July 17 to reply.

The Congress in its complaint to the Speaker has accused the rebel MLAs of attempting to jump parties.

Why has the Speaker served notice to the 19 Congress MLAs?

The notice has been served under the Tenth Schedule of the Constitution, popularly known as the anti-defection law.

Can the MLAs go to court at any time before the July 17 deadline to reply?

Courts have been extremely reluctant to interfere with the powers of the Speaker under the Tenth Schedule.

While deciding on the disqualification, the Speaker exercises powers that have been conferred to him under the Constitution.

  • Even when challenged, as it was in the case of Karnataka in 2019, the court gave time to the Speaker to decide on the pleas.

Supreme Court’s ruling in ‘Kihoto Hollohan vs Zachillhu And Others’ (1992) case:

  • The court upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs.
  • While the Speaker’s decisions can be challenged subsequently, the court cannot stay or prevent the process.

Hence, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings.

  • Besides, the Court can review only infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice, and perversity.

Fundamental Rights in question:

Ousted Rajasthan Deputy Chief Minister Sachin Pilot and other 18 MLAs have approached the Rajasthan High Court challenging 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 have said the provision infringes into their right to express dissent and is a violation of their fundamental right to free speech as a legislator.

For Anti Defection law:

Refer: https://www.insightsonindia.com/2020/03/13/what-is-the-anti-defection-law-and-how-is-it-implemented/.

InstaLink:

Prelims Link:

  1. Names of various committees and commissions with regard to Anti Defection law.
  2. Overview of 52nd
  3. Committees vs Commissions.
  4. Decision of presiding officer vs Judicial review.
  5. Merger vs Split of political parties.
  6. Is anti- defection law applicable to the presiding officer?
  7. Relevant Supreme Court cases and verdicts.

Mains Link:

Examine the provisions of Anti- defection law. Has this law largely failed to meet its objective? Discuss.

Sources: the Hindu.