Kihoto Hollohan’ Judgement

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).

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.

Source:IE