Anti-Defection, Judicial Review and Article 212

  • Tenth Schedule lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House. 
  • Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.  
  • Originally, the decision of the presiding officer was final and could not be questioned in any court. However, in 1993 Kihoto Hollohan case, the Supreme Court declared this provision as unconstitutional on the ground that it seeks to take away the jurisdiction of the Supreme Court and the high courts. 
  • It held that the presiding officer, while deciding a question under the Tenth Schedule, function as a tribunal. Hence, his decision like that of any other tribunal is subject to judicial review on the grounds of mala fides, perversity, etc. 

Additional information: 

  • SC in the Kihoto Hollohan case specifically barred any judicial intervention prior to the decision-making stage. 
  • SC had held that no interference is permissible at interim stage of proceedings and judicial review of final decision is available only on limited grounds. 
  • Courts cannot interfere to decide questions of disqualification under the anti-defection law. 
  • Judicial Review cannot cover proceedings of the legislature under Article 212 of the Constitution. 

Article 212 of the Constitution provides for Courts not to inquire into proceedings of the Legislature – 

  1. The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure 
  2. No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.

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