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

Constitutional courts cannot judicially review disqualification proceedings under the Tenth Schedule (anti-defection law) of the Constitution until the Speaker or Chairman makes a final decision on merits.

A 28-year-old judgment of the Supreme Court in the Kihoto Hollohan versus Zachillu and Others has said that “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.”

“The only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence,” the five-judge Constitution Bench had held.

The Kihoto Hollohan judgment is significant in the case of ousted Rajasthan Deputy Chief Minister Sachin Pilot and other 18 MLAs, who were issued notice under the anti-defection law after the ruling Congress sought their disqualification.

Free speech

They 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.

The Bench explained that the reason for limiting the role of courts in ongoing defection proceedings is that the “office of the Speaker is held in the highest respect and esteem in parliamentary traditions. The evolution of the institution of parliamentary democracy has as its pivot the institution of the Speaker. He is said to be the very embodiment of propriety and impartiality.”

The February 1992 judgment had said that even the scope of judicial review against an order of a Speaker or Chairman in anti-defection proceedings would be confined to jurisdictional errors, that is, “infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.”

The Constitution Bench had upheld the anti-defection law saying “a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its members in furtherance of those commonly held principles ... Intra-party debates are of course a different thing. But a public image of disparate stands by members of the same political party is not looked upon, in political tradition, as a desirable state of things.”

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Printable version | Sep 27, 2021 3:54:49 PM |

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