The essence of time – Judicial intervention should strengthen anti-defection law, not undermine it

News: Recently, The Supreme Court granted time until July 12 to dissident legislators in the Maharashtra Assembly to reply to the Deputy Speaker’s notice under the anti-defection law. The political crisis in Maharashtra has brought focus back on the anti-defection law.

What is anti-defection law?
Read more: “Nominated members” and “Anti-defection Law” in India
What are the concerns associated with the recent Judicial intervention?

In 1992, Kilhoto Hollohan vs Zachillhu case, a Constitution Bench, while upholding the validity of the anti-defection law, held that the Speaker’s decision was subject to judicial review, albeit on limited grounds.

The court 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.

Since there is a specific bar on judicial intervention in disqualification proceedings at any stage prior to final adjudication under the Tenth Schedule, the present judicial intervention is creating ambiguity.

Further, there are Court judgments that say compliance with natural justice is not based on the number of days given, but on whether sufficient opportunity was given before a decision.

Read more: The success of anti-defection law in India and its relevance in multiparty parliamentary system
What are the other constitutional challenges exposed in Maharashtra?

The dissidents sent a motion to get the Deputy Speaker removed. The Deputy Speaker rejected it, as he has to decide disqualification questions in the absence of a Speaker. The rejection has also been questioned in court, thus raising a jurisdiction question on the adjudicatory power of the Deputy Speaker.

This shows that the Motions to remove a Presiding Officer are used as a ploy to circumvent disqualification proceedings.

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.

Read more: Ruchi Gupta writes: The crisis in Maharashtra shows the anti-defection law to be ineffective, even counterproductive

When defection is seen as a serious menace by the Constitution, the courts should contain them.

Source: The post is based on the article “The essence of time- Judicial intervention should strengthen anti-defection law, not undermine it” published in “The Hindu” on 29th June 2022.

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