The political tussle in Rajasthan entered the High Court and the Supreme Court.
The Supreme Court itself proposed to rule on the larger question of the jurisdiction of courts to entertain such pleas.
Supreme court;’s historical position on Anti defection law:
- The President of India made a presidential reference to the Supreme Court on the relative powers of legislative assemblies and constitutional courts.
- The Supreme Court held that there is a broad separation of essential powers of each organ of the State.
- However, the Court went on to hold that a judge who entertains a petition challenging any order of the legislature does not commit contempt of the said legislature.
- Since then court have restrained themselves from interfering in the workings of legislative assemblies or Parliament is concerned.
- The sole exception is under the anti-defection law-after a final order of disqualification has been passed.
Kihoto Hollohan’s case
- Constitution bench of the Supreme Court in 1992 held that the Speaker acting in a disqualification matter acts as a tribunal and is subject to judicial review.
- However, the same judgment makes it clear that the Court will not intervene at an interim stage.
- The same judgment further holds that the Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House.
- In this case, issuance of a possible disqualification notice by the Speaker, has been contested in constitutional courts.
- Even in routine petitions against notices of proposed administrative actions, the petitioner is told to answer the show cause notice and to challenge the final action only.
- The Rajasthan High Court, however, entertained a petition to challenge the Speaker’s authority to decide, if MLAs had committed an act of defection.
- The Rajasthan High Court reserved its judgment, requested the Speaker to defer further proceedings and proceeded to direct him to await judgment.
Speaker vs the high court:
- Rajasthan assembly Speaker moved the Supreme Court, questioning the court’s power to direct a Constitutional authority.
- The principle of law applied is that Constitutional authorities cannot issue directions to each other.
- They can, at best, make a polite request.
- The single judge in Calcutta, recorded in his judgment that the Supreme Court was only co-equal with the High Court, as a Constitutional Court.
- Appellate powers of the Supreme Court did not make it a superior authority to which the High Court was subordinate.
- Ever since, the Supreme Court has been careful to couch its orders as requests to any High Court, or Constitutional authority.
- Constitutional courts have followed the same principle, in addressing other Constitutional authorities.
Role of judiciary:
- Unnecessary conflict between organs of state may well invite some Speaker, backed by a solid majority at State and Centre, to defy the courts.
- Courts are apolitical but keep getting pulled into political thickets, especially in matters of mass defections resulting in regime change.
- The walls of separation between constitutional organs, once breached, cannot be then repaired against future intrusions.
Even under a sovereign Constitution, parliamentary and legislative supremacy in their areas of working must be respected.