With the approval of the Tenth Schedule, often known as the “anti defection law,” the legislation pertaining to the Speaker’s powers and the disqualification of legislators in making such decisions became a part of the constitution in 1985. The constitutional challenge to the anti defection law was resolved in the kihoto hollohon v zachilhu case. The Supreme Court’s primary concern was whether Speaker’s large role had breached the basic structure principle.
kihoto hollohon v zachilhu Case Facts
- In the case of Kihota Hollohon v. Zachilhu and Ors, the constitutional validity of the Tenth Schedule created by the Constitution 52nd amendment act, 1985, was contested.
- The petitioners were brought together for joint hearings on Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions, and various additional proceedings posing common questions. The tenth schedule took the place of four articles of the Constitution—101(3)(a), 102(2), 190(3)(a), and 191(2), according to the Constitution 52nd amendment act.
- The Hon’ble Supreme Court affirmed the Anti-Defection Law’s constitutional validity in a 3:2 ruling.
- The majority was composed of Justices M.N. Venkatachaliah, K.J. Reddy, and S.C. Agrawal; the minority was composed of Justices L.M. Sharma and J.S. Verma.
- Concurrently, the Supreme Court decided that judicial review is applicable to the speaker’s orders under the statute that prevent an MLA from serving due to defection.
kihoto hollohon v zachilhu Issues
- Is it accurate to say that the Speaker should only have these extensive powers in cases when there is a plausible possibility of bias?
- Is the 52nd amendment act constitutionally permissible?
- if judicial review is accessible prior to the Speaker/Chairman making a decision.
- Does the Tenth Schedule of Rules fall under the purview of judicial review?
Contentions by the Parties
Petitioner:
- The petitioner argued that Chapter IV of Part V (Supreme Court) and Chapter V of Part VI (High Court) are altered by Paragraph 7 of the Tenth Schedule, which removes the Supreme Court’s authority under Article 136 and the High Court’s jurisdiction under Article 226,227. Therefore, in accordance with Article 368, before an amendment is submitted to the President for approval, it must be approved by the legislatures of at least half of the states.
- In addition, the petitioner argued that paragraph 7 of the Tenth schedule eliminates the ability for judicial review because it prevents a disqualified member from appealing a decision made by the Speaker or Chairmen to the High Court or Supreme Court.
- The petitioner further claimed that the idea of disqualification for defection violates the fundamental principles and values of parliamentary democracy, as well as the rights to free speech, dissent, and conscience of elected officials, and that it undermines a fundamental aspect of the Constitution.
- A further argument presented to the court was that there was a breach of the fundamental characteristic as democratic processes require independent adjudicating bodies to settle electoral disputes.
Respondent:
- The Respondent argued that Articles 122 and 212, which forbid the court from looking into parliamentary processes, negate the court’s jurisdiction under paragraph 7.
- The respondent went on to say that there would be no need for judicial review because the Speaker/Chairman, who is using their authority under Paragraph 6(1) of the Tenth Schedule, works as a member of the state’s legislative department rather than as a statutory tribunal.
kihoto hollohon v zachilhu Judgment
- Speakers and Chairmen are crucial to parliamentary democracy because they guard the rights and privileges of the House. In a parliamentary democracy, they are expected to make important choices, and they often do. They should not be regarded as exceptional as they have been granted the authority to make decisions about questions under the Tenth Schedule.
- The Speaker does not meet the requirements for such an independent adjudicatory power because his tenure as the authority to resolve this disagreement under the Tenth Schedule is contingent on the House’s continued support.
- Furthermore, it was found that the Tenth Schedule’s paragraph 6 does not establish a non-justiciable zone. It is also possible to see the Speaker’s authority to settle disputes as judicial.
- The Election Commission took a similar stand, citing the views of Justices L.M. Sharma and J.S. Verma. It made recommendations and suggested in 1977 that defection-related disqualifications be submitted to the Election Commission for a view to be extended to the President or Governor, as the circumstance may be, and that the President or Governor act on the Election Commission’s similar opinion, just like with other disqualifications pertaining to articles 102 and 191 of the constitution.
In Kihoto Hollohan v. Zachillhu, it was argued that the rights to conscience, dissent, and free speech are violated by the anti-defection act. The Supreme Court decided that the goal of the statute is to deal with unprincipled defections, which are not covered by the rights to intellectual freedom, dissent, or freedom of conscience. As a result, this law has certain dysfunctional effects, yet it is required in the modern day because combating political corruption is a crucial component of democratic reforms.
For any latest news, legal topics, judiciary exams notifications, patterns, etc watch Jyoti Judiciary’s YouTube channel for legal videos for any updates at https://youtube.com/@jyotijudiciarycoaching4852?si=2cwubh9d2A9urwJf
