Kihoto Hollohan Order (1992)

• In the arguments in the Supreme Court in the case related to the political crisis in Karnataka, Senior Advocate Abhishek Manu Singhvi, representing the Speaker of the Assembly, cited the landmark judgment in Kihoto Hollohan vs Zachillhu And Others (1992), in which the court upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs.

• The Bench of Chief Justice of India Ranjan Gogoi and Justices Deepak Gupta and Aniruddha Bose said that the discretion Speaker to decide on the resignations of the 15 MLAs “should not be fettered by any direction or observation” of the court;

• However, the rebel MLAs “ought not to be compelled to participate in the proceedings of the… House… and an option should be given to them that they can take part in the said proceedings or to opt to remain out of the same”.)

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What was the Kihoto Hollohan case?

• The law covering the disqualification of legislators and the powers of the Speaker in deciding such matters became part of the statute book in 1985 when the Tenth Schedule to the Constitution was adopted.

• A constitutional challenge to the Tenth Schedule was settled by the apex court in Kihoto Hollohan.

• The principal question before the Supreme Court in the case was whether the powerful role given to the Speaker violated the doctrine of Basic Structure — the judicial principle that certain basic features of the Constitution cannot be altered by amendments by Parliament, laid down in the landmark judgment in Kesavananda Bharati vs State Of Kerala (1973).

What does the Tenth Schedule say?

• The Tenth Schedule, which was inserted in the Constitution by the Constitution (Fifty-Second Amendment) Act, 1985, popularly known as the “anti-defection law”, provides for the disqualification of Members of Parliament and state legislatures who defect.

• Paragraph 2 of the Schedule says that “a member of a House belonging to any political party shall be disqualified from being a member of the House… if he has voluntarily given up his membership of such political party; or if he votes or abstains from voting in such House contrary to any direction issued by the political party… without obtaining… prior permission…”

And what is the extent of the Speaker’s powers?

• Paragraph 6(1) of the Tenth Schedule describes the Speaker’s sweeping discretionary powers: “If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final.”

What did the Supreme Court rule in Hollohan?

• The petitioners in Hollohan argued whether it was fair that the Speaker should have such broad powers, given that there is always a reasonable likelihood of bias.

• The majority judgment authored by Justices M N Venkatachaliah and K Jayachandra Reddy answered this question in the affirmative: “The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in the Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in them should not be considered exceptionable.”

• They added that the Schedule’s provisions were “salutory and intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.”

What was the minority view on the Bench?

• Dissenting Justice Lalit Mohan Sharma and J S Verma took a drastically different view: “The tenure of the Speaker, who is the authority in the Tenth Schedule to decide this dispute, is dependent on the continuous support of the majority in the House and, therefore, he does not satisfy the requirement of such an independent adjudicatory authority.”

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Mains Paper 2 : Indian Constitution – historical underpinnings, evolution, features, amendments, significant provisions and basic structure

Prelims level : About the case

Mains level : Anti-defection Law and issues with it

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