Context: Rebel Congress leader Sachin Pilot and 18 other dissident MLAs moved the High Court on challenging the disqualification notices issued to them by the Assembly Speaker.
- Rajasthan Assembly Speaker issued notice on a plea filed by Congress Chief Whip citing the MLAs’ absence from successive Congress Legislature Party (CLP) meetings and a “conspiracy to bring down the government”.
- The rebel 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.
- They contended that they could not be disqualified merely for disagreeing with the decisions and policies of some leaders outside the Assembly.
- The MLAs have said the provision infringes on their right to express dissent and is a violation of their fundamental right to free speech as a legislator.
Judicial review of disqualification under 10th Schedule
- The Supreme Court in the Kihoto Hollohan versus Zachillu and Others has said that 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.
- The only exception being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequences.
- But the Speaker’s decision was subject to judicial review as he acted as a tribunal while deciding cases under the anti-defection law.
- The Speaker of the House does not have the power to review his own decisions to disqualify a candidate.
- Ignoring a petition for disqualification is not merely an irregularity but a violation of constitutional duties.
- Office of speaker: 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.
- Conditions for judicial review: SC 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 like violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.
- Upheld anti-defection law: SC 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 the concerted action of its members in furtherance of those commonly held principles.
- Intra-party debates are a different thing.
Image Source: Times of India
The Anti-Defection Law
- It was passed in 1985 through the 52nd Amendment to the Constitution, which added the Tenth Schedule to the Indian Constitution.
- The main intent of the law was to combat “the evil of political defections”.
- Articles 102 (2) and 191 (2) deal with anti-defection.
- The law applies to both Parliament and state assemblies.
What are the conditions for disqualification
- If a member of a house belonging to a political party: -
- Voluntarily gives up the membership of his political party, or
- Votes, or does not vote in the legislature, contrary to the directions of his political party. However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
- If an independent candidate who is not aligned to any political party, joins a political party after the election.
- If a nominated member joins a party six months after he becomes a member of the legislature.
- The decision on the question as to disqualification on ground of defection is referred to the Chairman or the Speaker of the House.
Who has the power to disqualify?
- The Chairman or the Speaker of the House takes the decision to disqualify a member and his decision is final.
- If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision.
Split and merger under anti-defection law
- The 91st amendment to the Constitution in 2003, does not recognise a ‘split’ in a legislature party.
- Instead, it recognises a ‘merger’ that requires at least two-thirds of the members of a legislature party to join another political formation or form a new one without getting disqualified under the anti-defection law.
Is there any time period for the presiding officer to decide on a disqualification plea?
- No. Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.