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This article is written by Nandini R.


The political turmoil from the beginning of July has placed before us a slew amount of questions of law and its functioning. The judiciary has acted out of the blue, in making an order going contrary to its own. The Rajasthan High Court had admitted and indeed has given its judgement to the petition filed by the dissident MLA camp of the ruling party in the state. It has not only held the petition to be “maintainable” but has gone a step further in challenging the Speaker’s notice and has more substantially directed that status quo be maintained in the disqualification proceedings against the dissident MLAs. The striking fact is that the High Court has held the petition to be “maintainable” merely relying upon the questions arisen, including one about the validity of a provision enlisted under the Tenth Schedule. This is a clear indication of a violation of the “Doctrine of Precedent”. 

Looking back into past

The landmark case in this subject is the Kihoto Hollohan case, which has upheld the Constitutionality of the Anti-defection law. Though the five Judges bench ruled that the Speaker’s order under the law, disqualifying a member of the legislation on the grounds of the defection law is subjected to judicial review, the very same judgement has also prescribed its limitations. The Supreme Court has circumscribed its applicability by pronouncing, 

“However, having regard to the Constitutional Scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen. Having regard to the Constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.”

The judgement has starkly expounded the circumstances as to the Judicial interference in the matters involving the Legislative. This deviation has affected the predominance of the reliance of the precedents.
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Decoding the grounds of maintainability

In the present case, the High Court has admitted such a petition, which seems to have no sound grounds nor does it seem to hold any substantial question of law at this current moment. More importantly, the High Court did not make any statement giving out it’s the reasoning for this controversial admission. This is much of concern since the High Court’s response to “ maintainability” was only relied upon by the mere questions raised by the petitioners, disregarding the legal dictum well laid by the 1992 Supreme Court judgement, which prevents the judicial interference in any premature stage of the disqualification proceeding. Notwithstanding this verdict acting as a yardstick in this subject, the High Court has preferred to deviate, without any “reasoning”. This by itself is a serious setback in the process of administration of Justice.

The 13 questions framed

The questions issued by the High Court seems to be the impliedly declaring the reasons for such admission of the petition. To clear the prevailing scepticism, the 13 questions have to be analysed carefully. Among those questions, few have seemed to hold striking legal questionability.

  • (ii) Whether, in facts and circumstances of the present case, paragraph 2(1)(a) of the tenth schedule of the Constitution, is violative, in particular with the basic structure of the Constitution of India including the fundamental right of expression guaranteed by the article 19(1)(a) of the Constitution of India and thus void?

The above question has interlinked the Constitutionality of paragraph 2(1)(a) of the Tenth Schedule of the Constitution and the “ facts and circumstances” of the case. But, does the “validity” of any legal provision be subjected to a “test” merely on the “facts and circumstances” of every novel case arising? The validity of a provision cannot be altered, but its ambit can, in the approach of considering only the “facts and circumstances” of a case. This question would have sounded more radical if instead of targeting the validity of the provision, it had asked for an extensive interpretation of this well-laid law. This question deems to be fitting the square peg in a round hole. 

  • (x) Whether the words ‘voluntarily given up his membership of such political party’ in Paragraph 2(1)(a) of the Tenth Schedule take within their ambit, a criticism of the Chief Minister/manner of functioning of the State unit of the party, by an MLA, outside the House?
  • (xi) If the answer to issue No.(x) is in the affirmative, then, would not Paragraph 2(1)(a) be violative of the basic structure of the Constitution which includes Article 19(1) (a)?

The above-mentioned question (xi) turns up to question once again the validity of paragraph 2(1)(a) of the Tenth Schedule of the Constitution, now taking the ground as the to the limited interpretation given by the 1992 judgement. This question goes counter to the question raised by itself (ii). To answer this question concerning this new situation, the final order of disqualification has to be issued in real against the dissident MLAs by the Speaker. The question seems to put the cart before the horse here. Without any such occurrence of events, directly getting to question a sound judgement from a five-judge bench of the Supreme Court seems to misfit the regular practice of law. 

As of now, considering the questions (ii) and (xi) challenging the validity of paragraph 2(1)(a) of the Tenth Schedule of the Constitution, the 1992 judgement has held that,

“  (E) That Paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended.

The provisions of Paragraph 2 do not violate any rights or freedom under Article 105 and 194 of the Constitution.

The provisions are salutary and are intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections.  ”

Thereby, the Supreme Court has upheld the validity of the impugned provision.

  • (xiii) Whether the judgment of the Hon’ble Supreme Court in Kihoto Hollohans’s case (supra) can be understood so as to bar the High Court from examining the aforesaid questions?

This last question has posed in front of itself and to the public at large, a cloud of confusion. It tends to examine the restriction (if any) laid down by the Supreme Court in the Kihoto Hollohan’s case upon the High Courts. In layman’s sense, the High Court has held this petition “maintainable” in order to examine and restructure the grounds of “maintainability” which was laid down by the Apex Court. This question indirectly targets its very own act of interference in the premature stage of the disqualification proceeding. The High Court by posing these challenges the legal dictum of the 1992 judgement of the Supreme Court regarding its guidelines on the “maintainability” of the petitions in this subject.

Diversion from the precedent

All of the listed proceedings of the High Court are contrary to the well-settled legal principle ruled out by the Supreme Court. This ex facie is a deviation from the “ Doctrine of Stare Decisis” and a violation of Article 141 of the Constitution of India. Article 141 of the Constitution of India says that, 

  1. Law declared by Supreme Court to be binding on all courts 

The law declared by the Supreme Court shall be binding on all courts within the territory of India.

The expression “all Courts” obviously means courts other than the Supreme Court. The decision of the Supreme Court is binding on the High Court and it cannot ignore it on the ground that relevant provisions were not brought to the notice of the Supreme Court, and hence its decision is not binding. The Supreme Court in the State of Andhra Pradesh v. A.P. Jaiswal, emphasizing upon the need for the courts to follow the principle of Stare Decisis, has observed:

“Consistency is the cornerstone of the administration of justice…… it is with a view to achieving consistency in judicial pronouncements, the courts have evolved the rule of precedents, the principle of Stare Decisis etc. these rules and principles are based on public policy and if these are not followed by courts then there will be chaos in the administration of justice.”

The High Court of Rajasthan has done a blunder by setting aside the already settled law. This is against the crux of the doctrine of Stare Decisis which runs as “ stare decisis et non quieta movere” whose literal meaning is “ to stand by the decisions and not to disturb the well-settled matters”. 


This simple direction issued by the High Court poses an impediment not only to the administrative mechanism of the judiciary but to the working of the Parliamentary process itself. The 1992 judgement has settled the question of law impugned, considering the importance of the Separation of Powers as prescribed in our Constitution. This interference in the exercise of the Speaker’s Constitutional duty at a premature stage, merely because of the issuance of “show-cause” notice to the dissident MLAs happens to be irregular. Also, the reconsideration of an already well-settled provision by the High Court seems to throw stones in still waters.

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