The Hindu Editorial Vocabulary– Jun 29, 2022; Day 320

The essence (importance) of time: On courts and the anti-defection law

Judicial intervention should strengthen anti-defection law, not undermine it

Time is of the essence when it comes to executing political manoeuvres (A plan for attaining a particular goal) to reduce a government to a minority. Dissident (Disagreeing, especially with a majority) legislators need time to gather enough numbers to vote out (to defeat (an incumbent) in an election) the regime. Ruling parties need to close the window of opportunity soon, often using the threat of disqualification for defection (the desertion of one’s political party in favor of an opposing one). It is in this backdrop that judicial intervention in matters relating to disqualifying lawmakers for defection takes place — either buying the dissidents time or allowing disqualification proceedings to go on unhindered (Not slowed, blocked or interfered with). By its order granting time until July 12 to dissident Shiv Sena legislators in the Maharashtra Assembly to reply to the Deputy Speaker’s notice under the anti-defection law, the Supreme Court has effectively made it possible for them to actualise (Make real) their objective without the threat of disqualification for now. It is doubtful whether the Court should have done this in the face of a specific bar on judicial intervention in disqualification proceedings at any stage prior to final adjudication (The final judgment in a legal proceeding) under the Tenth Schedule. In 1992 ( Kihoto Hollohan vs Zachillhu), a Constitution Bench, while upholding the validity of the anti-defection law, held that the Speaker’s decision was subject to judicial review, albeit (Even though) on limited grounds. It also made it clear that this should take place after a final decision, and there can be no interim order, except if there is an interim disqualification or suspension.

The Deputy Speaker’s grant of just two days for the MLAs to reply may have occasioned (cause) the intervention; but it is doubtful whether the Court should concern itself with the question now, when it can be decided after their possible disqualification. There are Court judgments that say compliance (Acting according to certain accepted standards) with natural justice is not based on the number of days given, but on whether sufficient opportunity was given before a decision. Based on a conclusion in Nabam Rebia (2016) that a Presiding Officer should not adjudicate any defection complaint while a motion for his own removal is pending, the dissidents sent a motion to get the Deputy Speaker removed. After he rejected it, the rejection has also been questioned in court, thus raising a jurisdiction question on the adjudicatory power of the Deputy Speaker, who, of necessity, has to decide disqualification questions in the absence of a Speaker. Motions to remove a Presiding Officer should not become a ploy (A tactic or manoeuvre intended to gain an advantage) to circumvent disqualification proceedings. If courts countenance (give permission) manoeuvres to pre-empt a decision on whether legislators camping in another State and questioning the Chief Minister’s majority have incurred disqualification by “voluntarily giving up membership” of their party, they undermine the anti-defection law and render (announce) nugatory (Of no real value) rulings by Constitution Benches. When defection is seen as a serious menace (Something that is a source of danger) by the Constitution, courts should not act in furtherance of it. The duty to protect those wrongly disqualified is important, but so is calling to account defectors whose motives are suspect.

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