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HC KEEPS STATUS QUO: DECODING THE DECISION

Focus: GS-II Governance

Why in news?

The Rajasthan high court deferred its final verdict on the plea challenging the state assembly speaker’s notices of disqualification.

What are the implications of the order?

The speaker cannot decide on disqualification notices for the time being.

When can the speaker act?

  • If the Supreme Court stays the high court order, the speaker can act.
  • The Supreme Court is slated to take up the matter for hearing on the larger legal question of the high court’s jurisdiction to interfere with the speaker’s proceedings.
  • If the Supreme Court does not stay the matter, then the speaker cannot act until the high court pronounces its verdict one way or the other.

What are the issues the Supreme Court is examining?

The SC is examining the limited legal question: whether a high court can interfere with the disqualification proceedings initiated before the speaker decides on them.

Past Judgements

  • The Supreme Court, in its 1992 judgment in the Kihoto Hollohan v. Zachillu case, had held that judicial review should not cover any stage prior to the making of a decision by the speaker/chairman.
  • No interference would be permissible at an interlocutory stage of the proceedings, the court had said.
  • The court is proposing to re-examine this legal principle.

What are the issues the high court is hearing?

  • The high court will examine the Constitutional validity of clause 2(1)(a) of the Constitution’s Tenth Schedule that contains provisions related to the disqualification of lawmakers for defection.
  • Clause 2(1)(a) is about voluntarily giving up membership of a political party on whose ticket a lawmaker is elected on.

The Contention by those facing Defection charges:

Merely voicing opinion against party leadership does not amount to “voluntarily giving up membership” and clause 2(1)(a), to the extent it prohibits the expression of opinion, violates the basic structure of the Constitution and the freedom of speech under Article 19.

What is Defection (Aaya Ram Gaya Ram)?

  • Aaya Ram Gaya Ram (English: Ram has come, Ram has gone) expression in politics of India means the frequent floor-crossing, turncoating, switching parties and political horse trading in the legislature by the elected politicians and political parties.
  • A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.
  • The law applies to both Parliament and state assemblies.
  • The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.

Anti-Defection Law

  • 1985 Anti-defection Act was passed in 1985 to prevent such defections.
  • It was included in constitution by Rajiv Gandhi government as the tenth schedule of Indian constitution.
  • The Anti-defection Act, applicable to both Parliament and state assemblies, specifies the process for the Presiding Officer of a legislature (Speaker) to disqualify a legislators on grounds of defection based on a petition by any other member of the House.
  • Legislators can change their party without the risk of disqualification to merge with or into another party provided that at least two-thirds of the legislators are in favour of the merger, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.
  • The Supreme Court mandated that in the absence of a formal resignation, the giving up of membership can be determined by the conduct of a legislator, such as publicly expressing opposition to their party or support for another party, engaging in anti-party activities, criticizing the party on public forums on multiple occasions, and attending rallies organised by opposition parties.
  • The Presiding Officer has NO time limit to make his decision

-Source: Hindustan Times

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September 2022
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