judicial-indiscipline-on-rajasthan-political-crisis

Context: The Rajasthan High Court has deviated from a Supreme Court Ruling on Anti Defection Law.

Background:

  • After Karnataka and Madhya Pradesh, it is alleged that the Rajasthan Government might lose its power.
  • Currently disqualification proceedings are being held against 19 MLAs under the 10th Schedule (Anti Defection Law).

Judicial Indiscipline showed by Rajasthan HC:

  • The HC ordered maintenance of status quo on the disqualification proceedings and admitted the petition of 19 MLAs challenging the Speaker’s notice under Anti Defection Law.
  • The order marks a violation of the Supreme Court’s Verdict in Kihoto Hollohan V.  Zachillhu Case (1992) in which the SC said -
    • The Anti Defection Law doesn’t undermines an individual legislator’s freedom of speech and expression under Article 19 of the constitution 
    • Further in struck the provision under the law which debarred judicial review as judiciary can review speaker’s decision
    • However intervention is only possible when the speaker has taken its decision on disqualification, the court will not intervene in the proceedings of disqualification.

Anti Defection Law

About

  • It is a law to prevent political defections which may be due to reward of office or other similar considerations.
  • The Tenth Schedule was inserted in the Constitution through the 52nd amendment in 1985.
  • It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.

Decision of Presiding Officer

  • Originally, the act provided that the decision of the presiding officer is final and cannot be questioned in any court. 
  • However, in the Kihoto Hollohan case (1993), the Supreme Court held that the presiding officer, while deciding a question under the Tenth Schedule, functions as a tribunal.  
  • Hence, his decision like that of any other tribunal, is subject to judicial review on the grounds of mala fides, perversity, etc. 

Grounds for Disqualification:

  • A legislator is deemed to have defected if he -
    • voluntarily gives up the membership of his party or 
    • disobeys the directives of the party leadership on a vote without obtaining prior permission of such party and such act has not been condoned by the party within 15 days.
  • Independent Members: If he joins any political party after getting elected to the house.
  • Nominated Members : If he joins any political party after the expiry of six months from the date on which he takes his seat in the House.

Exceptions

  • The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
    • The provision of the Tenth Schedule pertaining to exemption from disqualification in case of split by one-third members of legislature party has been deleted by the 91st Amendment Act of 2003.
  • If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office.

Shortcomings 

  • The law impedes a legislator to listen to his conscience.
  • This eventually forbids prudent accountability of executives by the legislature.
  • It is also a major reason for dwindling intra party democracy.

Reforms:

  • Dinesh Goswami Committee on Election Reforms (1990): The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.
    • The Election Commission called for this advice to be binding in nature.
  • Halim Committee on anti-defection law (1998):
    • The words ‘voluntarily giving up membership of a political party’ are not comprehensively defined.
    • Restrictions like prohibition on joining another party or holding offices in the government be imposed on expelled members.
    • The term political party should be defined clearly.
  • Election Commission
    • Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.
  • Constitution Review Commission (2002)
    • The vote cast by a defector to topple a government should be treated as invalid.
    • Several experts have suggested that the law should be valid only for those votes that determine the stability of the government (passage of the annual budget or no-confidence motions).

Conclusion:

It is a rare instance of a High Court trying to bypass the verdict of a SC constitutional bench. The High Court is now venturing to find out whether disqualifying lawmakers who “voluntarily give up membership” of their party, has been examined by the apex court from the point of view of “intra-party democracy”.

Source:

https://www.thehindu.com/opinion/editorial/judicial-indiscipline-on-rajasthan-political-crisis/article32186245.ece

Image Source: Times of India