Kihoto Hollohan’ Judgement

    0
    8393

    In Context 

    • In the recent Maharashtra political crisis the references have been made to the landmark judgement in ‘Kihoto Hollohan vs Zachillhu And Others’ (1992), in which Supreme Court upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs.

    What is the ‘Kihoto Hollohan’ Case?

    • The law covering the disqualification of lawmakers 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, commonly known as the ‘anti-defection law’, was adopted.
      • A constitutional challenge to the Tenth Schedule was mounted, which 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.
    • The Supreme Court laid down the doctrine of basic principle in its landmark judgement in ‘Kesavananda Bharati vs State Of Kerala’ (1973).

    What does the Tenth Schedule of the Constitution say?

    • It  was inserted in the Constitution by the Constitution (Fifty-Second Amendment) Act, 1985.
    • It 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 a political party; 
      • if he votes or abstains from voting in such House contrary to any direction issued by the political party without obtaining prior permission
    • Speaker’s powers under the Tenth Schedule
      • 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.”
      • The Speaker’s powers under the Tenth Schedule have been previously upheld by the Supreme Court itself
        •  The court has allowed judicial review only once the Speaker has made a decision, and has ruled out interference with the process.
    • Role of Deputy Speaker
    • Article 93 of the Constitution mentions the positions of the Speaker and Deputy Speaker of the House of the People (Lok Sabha), and Article 178 contains the corresponding position for Speaker and Deputy Speaker of the Legislative Assembly of a state.
      • Article 95(1) says: “While the office of Speaker is vacant, the duties of the office shall be performed by the Deputy Speaker”.
      • In general, the Deputy Speaker has the same powers as the Speaker when presiding over a sitting of the House. 
        • All references to the Speaker in the Rules are deemed to be references to the Deputy Speaker when he presides.

    Supreme Court’s ruling in ‘Kihoto Hollohan’

    • The petitioners in ‘Kihoto 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 judgement 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.”

    Other judges views in Kihoto Hollohan case 

    • Justices Lalit Mohan Sharma and J S Verma dissented and took a 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.”
        • An independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as an attribute of the democratic system which is a basic feature of our Constitution.
        •  [the Speaker’s] choice as the sole arbiter in the matter violates an essential attribute of the basic feature.”

    Other related ruling of supreme court 

    • In 2016 the ruling of a Constitution Bench of the Supreme Court shifted the balance on the powers of the Speaker.
      •  In the landmark Nabam Rebia v Bemang Felix case, concerning a constitutional crisis in Arunachal Pradesh then, a five-judge Bench of the SC limited the Speaker’s powers.
    • Highlights of Nabam Rebia ruling
      • The Supreme Court held that it is “constitutionally impermissible” for a speaker to proceed with disqualification proceedings, if a no-confidence motion against him is pending.
        • The action of the Speaker in continuing, with one or more disqualification petitions under the Tenth Schedule, whilst a notice of resolution for his own removal, from the office of Speaker is pending, would ‘appear’ to be unfair.
          •  If a Speaker truly and rightfully enjoys support of the majority of the MLAs, there would be no difficulty whatsoever, to demonstrate the confidence which the members of the State Legislature repose in him.

    Repercussions

    • This ruling gave a window to defecting legislators to stall or circumvent the Tenth Schedule by seeking removal of the Speaker when disqualification proceedings are anticipated — effectively tying the hands of the Speaker.
    • Removal of Speaker 
      • Under Article 179 of the Constitution, a Speaker can be removed by a resolution of the Assembly passed by a majority of “all the then members of the Assembly”. 
        • The process begins with a notice of at least 14 days.
      • In the 2016 Nabam Rebia ruling, the Supreme Court interpreted Article 179, specifically the term “all the then members of the Assembly”, to mean the composition of the house at the date/time of giving the notice for the removal of the Speaker. 
        • This interpretation would mean that the composition of the Assembly cannot be changed from the date of issuing of a notice of the removal of the Speaker, and therefore the Speaker cannot make any decisions under the Tenth Schedule to change the composition of the House until the question of his removal is settled.

    Source:IE