Current Affairs Brain Booster for UPSC & State PCS Examination (Topic: Speaker's Decision and Judicial Review)

Brain Booster for UPSC & State PCS Examination

Current Affairs Brain Booster for UPSC & State PCS Examination

Speaker's Decision and Judicial Review

The question of Speaker’s powers to disqualify members and the extent to which courts can interfere with it have been a legal minefield, with contrasting judgements delivered in High Courts (HCs) and Supreme Court (SC).
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 antidefection law after the ruling Congress sought their disqualification.

The Tenth Schedule of the Constitution of India (anti-defection law) contains provisions relating to disqualification of lawmakers for defection. It provides two grounds to disqualify a lawmaker for defection. ( First, voluntarily giving up membership of the political party on whose ticket the lawmaker was elected [para 2(1)(a)]. ( Second, voting or abstaining from voting in the house contrary to the directions issued by the party, that is violating the party whip in the house [para 2 (1)(b)].
Tenth Schedule originally gave unquestionable powers to speakers of Parliament and State Assemblies with regard to disqualification under this law. But this was challenged in Kihoto Hollohan Case in 1992 and Supreme Court ruled that, since the role of speaker is akin to a tribunal and exercises a judicial function, thus their decisions are subject to judicial scrutiny by HCs and SC.
Anti-Defection law applies to both Parliament and state assemblies.

The phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignation.
The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’. However, the SC has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.
In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.
In recent case of Sachin Pilot and team, 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 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.”

Stage of Intervention (Constitutional courts cannot judicially review disqualification proceedings under the Tenth Schedule 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 vs 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.”
Time limit for Speakers (In Keisham Meghachandra Singh Vs. Honble Speaker Manipur Legislative Assembly (2020) case, three-judge bench said that the Speakers of both the state assemblies and the Parliament have to decide on disqualification petitions for members within three months except for the existence of an extraordinary circumstance. It also held that courts have the powers to intervene if the proceedings are delayed. ( Court recommended to Parliament that it strongly considers removing the Speakers’ disqualification powers and forming an independent tribunal to take up these petitions. The rationale for this suggestion is that Speakers invariably come from the ruling parties and act in a partisan manner.