Case Analysis of the Case of Kihoto Hollohon

Shri Kihota Hollohon v. Mr. Zachilhu and others: others: A Case Comment

1

Part I: Background and Introduction to Case The Constitution of India is primarily a social document with a political philosophy intended to bring about great changes in the socio-economic structure and to achieve the goals of national unity and stability. It derives its force from the people an d has at its base a value system. Its preamble speaks of the sovereignty of people, democratic polity, justice, liberty, equality and fraternity assuring the dignity of the individual and the unity and integr integrit ity y of the nation nation.1 The preamb preamble le is a modifi modified ed versio version n of the object objective ivess resolution of Jawaharlal Nehru which served as the foundation in the making of the consti constitut tution ion.. The resolu resolutio tion n was deeply deeply rooted rooted in the histor history y of our moveme movement nt of independence led by leaders who were committed to certain ideals and to their fulfillment through fair and proper means. They were the main architect of the basic law and they cautioned that it would not work unless its execution was entrusted to persons of caliber, chara charact cter er and and inte integr grit ity, y, and unles unlesss healt healthy hy conve convent ntio ions ns were were devel develope oped d to cover cover situations which cannot be provided for by precise formulae. They thus valued human element in the working of the constitution, and hoped that the country would produce such such pers persons ons in abund abundan ance ce,, and and that that good good sens sensee and and wisd wisdom om woul would d perv pervad adee the the functioning of political institutions.2 After the commencement of the constitution, however, it did not take long for political functionaries to belie largely the hopes of the framers. Especially after the departure of Nehru, the country witnessed a sharp decline in political morality and propriety and a phenomenal growth of political corruption of varied type. The worst form of corruption that emerged on a massive scale on the Indian Political Scene was defection of legislators wither individually or in groups. The unprincipled floor crossing was nothing but a betrayal of the electorate and undermining of the political organs of the state. The lust for power, position and money was obviously behind such defections. The present day political process is closely linked with socio-economic and cultural processes. Perversion of the former has a devastating impact on the latter. This is what the politics of defection did. It was therefore widely condemned and attempts were made to eradicate this evil by 1

Granville Austin: The Indian Constitution: Cornerstone of a Nation (1966)

2

Speech of Dr. Rajendra Prasad in the Constituent Assembly, Assembly, Constituent Assembly Debates, Vols. X-XII

at 933-94


2

law but in vain in terms terms of the Constitutional Constitutional amendment bills 1973 and 1978. In early 1985, however, the government initiative having the support of the opposition worked and Parliament enacted in record time the Constitution (Fifty-Second Amendment) Act outlawing defections to save the foundations of our nascent democracy and the principles that sustain it. 3 In the petitions heard together in the case of Kihota of Kihota Hollohon v. Zachilhu Zachilhu and others4 , hereinafter referred to as the case, the Constitut Constitutional ional

validity validity of the Tenth Schedule Schedule

introduced by the Constitution (Fifty Second Amendment) Act, 1985, was challenged. These cases were brought amongst a batch of Writ Petitions, Transfer Petitions, Civil Appeals Appeals,, Specia Speciall Leave Leave Petiti Petitions ons and other other simil similar ar and connect connected ed matter matterss raisin raising g common common questio questions ns which which were were all heard heard togeth together. er. The Consti Constitut tution ion (Fifty (Fifty-se -secon cond d Amendment) Act changed four articles of the Constitution, viz. 101(3)(a), 102(2), 190(3) (a) and 191(2) and added tenth schedule thereto. This Amendment is often referred to as Anti-Defection Law. The constitutionality of the Anti-Defection Law has been upheld by the Hon’ble Supreme Court in a 3:2 decision in the case. The majority consisted of M.N. Venkatachaliah, K.J. Reddy, and S.C. Agrawal, Jj. and the minority was consisted by L.M. Sharma and J.S. Verma, Verma, Jj. Jj. At the same same time as upholdi upholding ng the Consti Constitut tution ional al

validi validity ty of the AntiAnti-

Defection law the court has rules that the speaker’s orders under the law disqualifying a member of the legislature on the ground of defection is subject to judicial review. Some of the most eminent lawyers of the country were the counsels in the case and thus the arguments and contentions are evidently crafted with utmost proficiency. The same have been dealt with by the respective Hon’ble judges in a detailed manner, however, leaving aside some contentions which may not have been required with view of reaching the conclusions. The endeavor in the making of this project is to give a commentary on the views as expressed by the Hon’ble judges of the Supreme Court in the case and therefore in the following chapters the ruling has been scrutinized, criticized and observed. The chapters

3

Statement of Objects and Reasons appended to the Constitution (Fifty-second (Fifty-second Amendment) Bill, 1985

(Bill No. No. 22 of 1985) cited from http://indiacode.nic.in/coiw http://indiacode.nic.in/coiweb/amend/amend52.ht eb/amend/amend52.htm m 4

AIR 1993 SC 412


3

consist of the various contentions raised and urged in the case and contain a commentary upon the majority and minority judgments on them respectively.


4

Part II: Violation of the Basic Structure The contentions raised and urged u rged in terms of the violation of the basic structure are: 1. Fundamental Fundamental Principle Principless of Parliamen Parliamentary tary Democracy, Democracy, 2. Free Freedo dom m of of Spee Speech ch and 3. The right right to disse dissent nt and the the freedom freedom of of conscie conscience nce.. The basic underlying contention is that every parliamentarian must have the right to follow his own spirit and sense of judgment and not necessarily with the policy of his political party. This according to the petitioners is deemed to be a fundamental principle of parliamentary democracy, freedom of speech and the right to dissent and the freedom of conscience. The learned counsels referred to several authorities to stress upon the same. In words of Edmund Burke: “.... Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”5 In resp respon onse se to this this the the ques questi tion on deli delibe bera rate ted d upon upon by the the cour courtt is that that under under such such Constitutional scheme would there be any immunity from the political evil of the act of defection in lure of office and money inducement? Deliberating upon the same hon’ble Justice Venkatachaliah has expressed that in such areas of experimental legislation what is constitutionally valid and what is constitutionally invalid is marked by a ‘hazy gray line’ and thus there is no litmus test of constitutionality. The majority then went on to decide in favor of the Constitutional

validity saying saying that the the Constitution is flexible flexible to

provide for the compulsions of the changing times, that the freedom of speech of a member is not an absolute freedom and also that the political party functions on the strength of shared beliefs, it being the cost of the label of the party under which the representative has been elected that he must not vote against it. The right of a parliamentarian is indeed not an absolute right and is thus subject to reason reasonabl ablee restri restricti ctions ons.. The right right of a parlia parliament mentari arian an to the freedo freedom m of speech speech is provided for under the Article 105(2). This as contended by Shri Sharma, arguing on the side of the petitioners, is places even above the fundamental right as guaranteed under the Article 19(1)(a) of the Constitution. However there are limitations that can be imposed

5

MANU/SC/0101/1993 para 14


5

upon the right.6 The abstention of such right as a result of the disqualification is a reasonable restriction in interest of public morality. A restriction on their conscience franchise or abstention is reasonable in the interest of public morality.7 Morality Morality is conformity to ideals of right human conduct.8 Such a conduct is in the public interest and public interest requires that delegates, elected by people because they follow a particular political philosophy must vacate such office on renouncing that philosophy. A suggestion to the fact that the immunities as under the Article 105(2) are not absolute in nature is that the National Commission for review of the Constitution in its report9 submitted in 2002 has in fact recommended that Article 105(2) ought to be amended: “5.15.6. The Commission recommends that Article 105(2) may be amended to clarify that that the immuni immunity ty enjoyed enjoyed by the Members Members of Parliam Parliament ent under under parlia parliament mentary ary privileges does not cover corrupt acts committed by them in connection with their duties in the House or otherwise. Article 194 (2) may also be similarly amended in relation to the Members of State Legislatures.” Political defections in lure of power and money inducements is also clearly a corrupt practice, therefore not falling within the immunity granted to a member of the house. Another contention raised by counsel for petitioners, Shri Ram Jethmalani is that the distinction between ‘defection’ and ‘split’ in the Tenth Schedule is so thin and artificial that the differences on which the distinction rests is indeed an outrageous defiance of logic. Appreciating the argument of the counsel the Court has opined that the rule for exemption of split is justified in terms that as much as 1/3rd members at the same time cannot be driven dishonest intentions. In words of hon’ble Justice Venkatachaliah: “The underlying premise in declaring an individual act of defection as forbidden is that lure of office or money could be presumed to have prevailed. Legislature has made this presumption on its own perception and assessment of the extant standards 6

Justice P.K. Balasubramanyan, Balasubramanyan, Parliamentary Parliamentary Privilege: Complementary Complementary Role of the Institutions, (2006) 2

SCC (Jour) 1 7

J&K p.26 Mian Bashir Ahmed v. Ahmed v. State of J&K, AIR 1982 J&K

8

on Act: Webster, New Webster, New Colegiate Dictionary 742 (Indian edn. 1983) cited from J. K. Mittal, Anti-Defecti Mittal, Anti-Defection

Comment on its Constitutionality (1987) 3 SCC (Jour) 25`at 28 9

Report of the National Commission to Review the Working of the Constitution (Vol. I, March 2002) p.

168


6

of political proprieties and morality. At the same time legislature envisaged the need to provide for such “floor-crosssing” on the basis of honest dissent. That a particular course of conduct commended commended itself to a number of elected representatives representatives might, in itse itself lf,, lend lend cred creden ence ce and and reas reassu sura ranc ncee to a pres presum umpt ptio ion n of bona bona fide fides. s. The The presumptive impropriety of motives progressively weakens according as the numbers sharing the action and there is nothing capricious and arbitrary in this legislative perception of the distinction between ‘defection’ and ‘split’.”10 However, However, the arguments arguments of the counsel sound more convincing than the ruling ruling given by the court. These provisions give blanket exemption to splits and mergers and frustrate the very purpose of Anti-Defection law. They are dangerous as their abuse can be easily done. They are totally ill-conceived in view of what has happened in the recent past, and illogical because under the Act, the greater the sin, the greater is the immunity. In many a case defections are effected by groups-big and small. It would not be difficult to stage splits and mergers for ulterior motives. In opinion of H.M. Seervai: “ …if a small number of MPs desert their party they become defectors; but if a large numbe numberr of me membe mbers rs defe defect ct thei theirr party party this this grand grand scal scalee deser deserti tion on cease ceasess to be deser deserti tion. on. But But ordi ordina nari rily ly gove governm rnmen ents ts are not toppl toppled ed by a small small numbe numberr of defections but by a large number of members of a party leaving it and/or going over to the party to which they have been opposed. This is the evil which must be eradicated in out country. For in India it is very rare for the members of a party to leave it because of a conscientious change in opinion. Defections in India usually take take place place beca because use poli politi tical cal inte interes rests ts are are sold sold for for mone moneyy or for for prom promis isee of ministership or public office, and the defector may defect again for some more money or promise of some more ministership or public office. In short it is odious form of political corruption”.11 It is amaz amazin ing g that that law law puni punish shes es smal smalll fry fry but not not hawks hawks.. The The clas classi sifi fica cati tion on into into individuals and groups has no intelligible differentia having a rational relation with the object of the law, and is, therefore unconstitutional in view of Article 14 and void. The Act outlaws defection by individual members but shuts eye to defections in garb of splits 10 11

MANU/SC/0101/1993 para MANU/SC/0101/1993 para 21

supra note 5 at 1832


7

and mergers of groups of members. The classification is prima facie irrational; it is undemocratic and ill-conceived.12 The minority judges held that there is a violation of the basic feature of the Constitution as the Constitutional scheme for decisions on questions on disqualification of members after being duly elected, contemplates adjudication of such disputes by an independent authority outside the House, namely President/Governor in accordance with the opinion of the Election Election Commission all of which are higher Constitutional Constitutional functionaries. The Election Commission having a similar opinion as that of the minority judges in the present case suggested in recommendations made in 1977 that as in the case of other disq disqua uali lifi fica cati tion onss refe referr rred ed to in arti articl cles es 102 102 and and 191 191 of the the cons consti titu tuti tion on,, the the disq disqua uali lifi fica cati tion on on grou ground ndss of defec defecti tion on coul could d also also be refe referr rred ed to the the Elec Electi tion on Commission for tendering opinion to the President or the Governor, as the case may be, and the President or the Governor shall act on such opinion tendered by the Election Commission.13

12

on Act: Comment on its Constitutionality Constitutionality (1987) 3 SCC (Jour) 25 at 29 J. K. Mittal, Anti-Defecti Mittal, Anti-Defection

13

P. C. Jain, Chawla’s Elections Law and Practice (Bahri Brothers, Delhi, 8 th edn. 2004) p. 1.704


8

Part III: Ratification required under Article 368(2) and applicability of Doctrine of Severability The second major contention raised by the petitioners is that paragraph 7 in terms and in effect brings about a change in the operation and effect of Articles 136, 226 and 227 thus attracting the clause (2) of the Article 368 requiring ratification. The court subscribing to it has opined that the words of the paragraph 7 are of wide import and leave no constructional options. The same idea is reinforced by looking into the history of the defec defecti tion on law law and the the debat debates es in the the hous housee whic which h sugg sugges ests ts that that parag paragra raph ph 7 was was introduced with the very purpose of barring jurisdiction. The court has differentiated the present case from the cases of Shankari of Shankari Prasad Singh Deo v. Union of India and State of bihar 14 and Sajjan Singh v. State of Rajasthan15 that were relied upon to urge that there is no attraction to the clause (2) of the Article 368 by stating:

“The propositions that fell for consideration in Sankari Prasad Singh's and Sajjan Singh's cases are indeed different. There the jurisdiction and power of the Courts under Articles 136 and 226 were not sought to be taken away nor was there any change brought about in those provisions either "in terms or in effect", since the very rights which could be adjudicated under and enforced by the Courts were themselves taken away by the Constitution. The result was that there was no area for the jurisd jurisdict iction ion of the Courts to operat operatee upon. upon. Matter Matterss are entire entirely ly differ different ent in the context of Paragraph 7.”16

Therefore it was by majority held that the amendment in terms and in effect brings about a change in the operation and effect of the Articles 136 and 226 and thus requires ratification under the clause (2) of the Article 368. The minority has reached to a similar conclusion by applying a similar logic to the cases Sankari Prasad and Prasad and Sajjan Singh. In view of the minority there two classes of cases, one with the abridgement or extinction of the right and the second one with the restriction on 14

1952 SCR 89

15

MANU/SC/0052/1964

16



9

remedy for the enforcement of right. The two cases belong to the former category and the present case falls in the latter category where the right still exists but at the same time the remedy has been destroyed. This result in changes made to the Articles 136, 226 and 227 thus attracting clause (2) Article 368. The argument, as raised by Shri Sibal that a provision which seeks to exclude the jur juris isdi dict ctio ion n of the the court court must must be stri strict ctly ly cons constr trued ued and and thus thus the the para para 7 bars bars the the interference of the court only in terms of interlocutory intervention does not hold as such construction in the present case is not possible. Such a construction is not possible as the intention of the legislature in introducing the para 7 of the Tenth Schedule is very clear that is to completely oust the power of the court to interfere in the decision making process of the speaker and in light of the para 6 giving finality to the speaker’s decision even after the decision has been made. The next question in consideration before the majority and minority, after having decided unanimously that the para 7 requires ratification and thus stands constitutionally invalid is that whether the Tenth Schedule severed from the para 7 stands constitutionally valid or not? In opinion of the minority the effect of the absence of ratification is such that the Constitution would not stand amended. In words of hon’nble Justice J. S. Verma: “..the Bills governed by the proviso cannot be presented to the President for his assent without the prior ratification by the specified number of State Legislatures or in other words, such ratification is a part of the special procedure or a condition precedent to presentation of the Bill governed by the proviso to the President for his assent. It logically follows that the consequence of the Constitution standing amended in accordance with the terms of the Bill on assent by the President, which is the substantive part of Article 368, results only when the Bill has been presented to the President President for his assent in conformity with the special procedure after performance of the the cond condit itio ions ns preced preceden ent, t, name namely ly,, passi passing ng of the the Bill Bill by each each House House by the the requisite majority in the case of all Bills; and in the case of Bills governed by the proviso, after the Bill has been passed by the requisite majority in each House and it has also been ratified by the Legislature of not less than one-half of the States.”


10

Doctrine of Severability:

It was held in the case of of R.M.D. Chamarbaugwalla v. Union of India,17 the Hon’ble Supreme Court has observed: “When a legislature legislature whose authority is subject subject to limitatio limitations ns aforesaid aforesaid enacts a law which is wholly in excess of its powers, it is entirely void and must be completely ignored. But where the legislation falls in part within the area allotted to it and in part outside it, it is undoubtedly void as to the latter; but does it on that: account become necessarily necessarily void in its entirety? entirety? The answer to this question must depend on whether what is valid could be separated from what is invalid, and that is a question which has to be decided by the court on a consideration of the provisions of the Act.” The doctrine of severability has been applied by the Supreme Court in several landmark cases cases striki striking ng down down the offending offending part part of the amendm amendment ent and upholdi upholding ng the rest. rest.18 However, the question that comes into picture and the one that is addressed by the majority in the present case is whether there is anything compelling in the proviso to the Article 368(2) requiring it to be construed in such a manner as to exclude the doctrine of severability? The The court court resp respon ondi ding ng to this this has has asse assert rted ed that that as a sett settle led d prin princi cipl plee of stat statut utor ory y constr construct uction ion a provis proviso o can have have no reperc repercuss ussion ion on the interp interpret retati ation on of the main main enactment. The general rule as has been stated by Hidayatullah, J., in the following words: “As a general rule, a proviso is added to an enactment to qualify or create an exception as to what is in the enactment, and ordinarily, a proviso is not interpreted as to stating a general rule.”19

17

1957 SCR 930 at 940

18

Sri Kesavananda Bharti Sripadagalavaru Sripadagalavaru v. State of Kerala, 1973 Supp. SCR 1; Minerva Mills Ltd. and

Ors. v. Union of India and Ors., MANU/SC/0075/1980 MANU/SC/0075/1980;; P. Sambhamurthy and Ors. etc v. State of Andhra Pradesh and Anr. MANU/SC/0103/1987 19

Shah Bhojraj Kuverji Oil Mills and Ginning factory v. Subash Chandra Yograj Sinha, AIR 1961 SC

Interpretations ( Wadhwa and 1596 at 1690 cited from Justice G. P. Singh, Principles Singh, Principles of Statutory Interpretations( Company, Nagpur, fifth edn. 1992) p. 133


11

Except as to the cases dealt with by it, a proviso has no repercussion on the interpretation of the enacting portion of the section so as to exclude something by implication which is embraced by clear words in the enactment. enactment.20 In West Durby Union v. Metropolitan Life Assurance Co.21 Lord Watson said: “I am perfectly clear that if the language of an enacting part of the statute does not cont contai ain n the the provi provisi sion onss whic which h are said said to occur occur in it, it, you canno cannott deri derive ve thes thesee provisions by any sort of implication from the proviso.” Thus the proviso as to the Article 368(2) cannot be construed in manner that it does not allow the applicability of the Doctrine of severability. It was thus held by majority: “That there is nothing in the said proviso to Article 368(2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the Amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification. Having regard to the mandatory language of Artic Article le 368(2 368(2)) that that “the “thereu reupon pon the the Const Constit itut utio ion n shall shall stan stand d amen amende ded” d” the the operation of the proviso should not be extended to Constitutional Constitutional amendments in a Bill Bill which which can stand stand by themsel themselves ves withou withoutt such ratif ratifica icatio tion. n. , accordi accordingl ngly, y, the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedul Schedulee in the Constitu Constitutio tion n of India, India, to the extent extent of its provision provisionss which which are amenable to the legal-sovereign of the amending process of the Union Parliament cannot be overborne by the proviso which cannot operate in that area……….the remaini remaining ng provisi provisions ons of the Tenth Schedul Schedulee can and do stand stand indepe independen ndently tly of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7.” The view of the minority however stands to the contrary. As has already been stated that the minority held that the Constitution has not been amended prima amended prima facie and thus stands as it was before the Constitution (Fifty second amendment) Act 1985. According to the 20

v. Bezwada Municipality, AIR 1944 PC 71 at p. 73; CIT, Madras & Southern Maharatta Rly. Co. Ltd. v. Bezwada

Mysore etc. v. Indo v. Indo Mercantile bank Ltd. AIR 1959 SC 713 at p. 718 cited from Justice G. P. Singh, Principles of Statutory Interpretations ( Wadhwa and Company, Nagpur, fifth edn. 1992) p. 133 21

[1897] A.C. 647 at p.652 cited from S. G. G. Edgar, Craies on Statute Law, (Universal Publishing house,

New Delhi, seventh edn, 2002) p. 218


12

minority there is no question of the applicability of the doctrine of severability as it cannot be applied to a ‘still born’ legislation. The minority also adduced that para 7, in light of the developments that resulted in the enactment of the amendment was supposed to be an integral part of the amendment and thus cannot be severed from the rest of the Tenth Schedule.


13

Part IV: Restriction on Judicial Review Another major contention on part of the petitioners is that the ‘finality clause’ as under the para 6 of the Tenth Schedule excludes the court’s jurisdiction rendering the speaker immune from Judicial Review. In India the position is such that whatever authority decides disputes must be vested with judicial authority. In the present case too the power to decide disputed disqualification under para 6(1) is preeminentl preeminently y a judicial complexion. complexion. The majority in the present case has held that the Speaker/chairman under the para 6(1) of the Tenth Schedule is Tribunal and that the finality clause does not oust the jurisdiction of the courts under Arts. 136, 226 and 227 but only limits it. In words of Hon’ble Justice Venkatachaliah:

“The finality clause in paragraph 6 does not completely exclude the jurisdiction of the courts under Articles 136, 226 and 227 of the Constitution. But it does have the effect of limiting the scope of the jurisdiction. The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority. authority. Such an action action can be ultra vires for the reason that it is in contraventio contravention n of a mandatory provision of the law conferring on the authority the power to take such an action. It will also be ultra vires the powers conferred on the authority if it is vitiated by mala fides or is colourable exercise of power based on extraneous and irrelevant considerations.”22

It was thus held that the para 6 of the Tenth Schedule does not introduce a non-justiciable area. The power to resolve the disputes of the Speaker/Chairman is a judicial power. The important construction is that of the ‘finality clause’ which paved a way for the majority to reach the judgment. In view of the judgment and the various authorities provided to arrive upon the same, it can be said that when under a statute an authority is give judicial power its power extends only to the framework provided for within the statute and the authority simply following 22



14

the provisions has the power to decide. His decisions have ‘finality’ if they fall within the purview of the provisions. To that extent the power of the courts of Judicial Review would be restricted. However, if the decision is illogical in the terms of the provisions or is mala fide then the same would be beyond the ambit of the judicial power granted to the authority and would be subject to jurisdiction of the appropriate court. Thus even if the jurisdiction of the civil courts is ousted, they have jurisdiction to examine the cases where the provisions of the Act and rules framed there under have not been observed and order made by the authority is purported order 23 or the statutory authority has not acted in conformity with the fundamental principles of natural justice24 or the decision is based on no evidence. evidence.25 The reason is that the order cannot be said to be ‘under the act’26 and as such jurisdiction of civil courts is not ousted. In Radha In Radha Krishnan v. Ludhiana v. Ludhiana Municipality, 27 the Supreme Court observed:

“A suit in Civil Court will always lie to question the order of a tribunal created by statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the provisions of the Act”

Another contention raised before the court was that there is a violation of the basic feature as independent adjudicatory machinery for resolution of electoral disputes is an essential incident of democracy. The majority and minority have differed at this point with the majority asserting that there is no violation of basic feature of Constitution keeping in mind the pivotal pivotal position position of the Speaker in a Parliamentary Parliamentary Democracy. Democracy. The Mino Minori rity ty has has asse assert rted ed that that ther theree is a viol violat atio ion n of the the basi basicc stru struct ctur uree on clea clearr and and 23

Union of India v. Tarachand Gupta, AIR 1971 SC 1958 cited from J. J. R. Upadhaya, Administrative Upadhaya, Administrative

Law(Central Law(Central Law Agency, Allahabad, 4 th edn. 2001) p. 361 24

Srinivas v. State of A.P., AIR 1971 SC 71; Chandra Shekhar v. Shekhar v. Bar Bar Council of India, Rajasthan, AIR

1983 SC 1012 cited from J. J. R. Upadhaya, Administrative Upadhaya, Administrative Law (Central Law Agency, Allahabad, 4 th edn. 2001) p. 361 25

v. Bachittar Singh, AIR 1960 SC 1168 cited from J. J. R. Upadhaya, Administrative Upadhaya, Administrative Kaushaliya Devi v. Bachittar

Law(Central Law(Central Law Agency, Allahabad, 4 th edn. 2001) p. 361 26

Upadhaya, Administrative Law (Central Dhula Bhai v. State of M.P., AIR 1969 SC 78 cited from J. J. R. Upadhaya, Administrative

Law Agency, Allahabad, 4 th edn. 2001) p. 361 27

AIR 1963 SC 1547


15

unambig unambiguous uous terms as there there is no indepen independen dentt body body to adjudi adjudicat catee over an electo electoral ral disp disput ute. e. The The majo majori rity ty has has exto extoll lled ed the the posi positi tion on of a Spea Speake kerr and and thus thus rath rather er unconvincingly tried to justify its view saying that there is no violation of the basic structure of the Constitution.

Part V: Subsequent developments and Conclusion


16

The purpose underlying the Anti-Defection Law is to curb defections, at the same time not to come in the way of democratic realignment of parties in the House by merger of two or more party’s or a split in a party. The Anti-Defection law when passed was a bold step in the Indian scenario but now with the passage of time certain loop holes seem to have emerged in the law much compromising in its effectiveness. The truth of the matter is that the law has not been able to prevent defections in Toto. While individual defections may have been discouraged, mass defections lie beyond the pale of law. Another difficulty in the implementation of the law is that often the speakers have not always exercised their power to determine whether a person is liable for the act of defection. He reason for this malady was rightly diagnosed by the minority Judges in Kihota) that the speaker depends continuously on the majority support of the the case ( Kihota) house, therefore if a member defects from a smaller party to a bigger party, the Speaker belongs belongs to the bigger bigger party party,, an impart impartial ial adjudi adjudicat cation ion on the defect defecting ing member members’ s’ ddisqu ddisquali alific ficati ation on become becomess extrem extremely ely improb improbabl able. e. There There has been been a suspic suspicion ion in the public mind that the power is at times exercised by the Speaker keeping in mind the political expediency. The majority judges placed the Speaker on a high pedestal but that does not really accord with the real facts of the political life of India. Recently the Supreme Court has considered a very important question.28 A person set up by a political party as a candidate gets elected to the house of Legislature and thereafter expelle expelled d by the party for any reason. reason. He thus thus becomes becomes an ‘unatt ‘unattache ached’ d’ member member.. I thereafter thereafter he joins another political political party, will he incur disqualific disqualification ation under the Tenth Schedul Schedule. e. The Suprem Supremee Court Court has answer answered ed the question question in affirm affirmati ative. ve. The same same yardstick is to be applied to a person who has independently been elected. It seems like the Anti-defection law has stirred up more controversies than it has been able to solve. For example, the Meghalaya Speaker suspended the voting rights of five independent members before the house was due to take up no confidence motion against the government. Later the speaker dismissed the voting rights of another five members of the opposition parties, ignoring the stay order as passed by the Supreme Court.

28

G. Vishwanathan v. Speaker, T.N. Legislative Assembly, AIR 1996 SC 1060


17

Defections have become an endemic in Goa so much so that the Speaker Barbosa himself led a group of seven legislators going out of the ruling party so as to himself become the Chief Minister of the state. Thus the speaker himself had defected.29 The unsavory incidents that have occurred in the wake of the Anti defection law show that there is a need to review the law as there are several lacunae in it. While there is a need to have a law to root out the malady of political defections from the Indian polity, there is also a need to endure that the question of disqualification is decided objectively, without any political considerations. It should be clearly laid down that the decision maker would be subject to the ultimate control of the Supreme Court. Law must be made certain in a lot more areas. Another important question to decide is whether the power to disqualify should continue to rest in the speakers who have in the past abused the same, thus defying the heavy reliance of the majority Judges in the case. In terms of the situation faced on the present day the decision making authority should be placed as was suggested by the minority Judges, in favor of the basic structure of the Constitution in some independent body. Some sort of Judicial review is also called for the decision making process because it has been proved in many circumstances again and again a speaker is more of a political creature. It is also also being being argued argued that that the law which which has succeeded succeeded in prevent preventing ing individua individuall defections must also prevent mass defections. The role of the speaker also has to be called in question. As mentioned in the minority view in in Kihota Hollohon, the speaker speaker depen depends ds for for his his tenur tenuree on the the majo majori rity ty in the the legi legisl slat atur ure. e. He does does not sati satisf sfy y the the requir requireme ement nt of an ‘indiv ‘individu idual al adjudi adjudicat catory ory body’. body’. Subseq Subsequen uentt event event in the variou variouss legislatures have proved these assertions of the minority judges right. The high ethical standard which was setup by the majority judges in the case is seldom reached by the Speakers in India. This This situat situation ion can be recti rectifie fied d and the Anti-D Anti-Defe efecti ction on law made more more effect effective ive,, if adjudicatory function is rested in the Election Commission. On the lines of Articles 102 and 192, the president in case of the parliament and the governor in the case of state

29

M.P. Jain, Jain, Indian Constitutional Law( Law( Wadhwa publishers, Nagpur, 5th edn. 2005) p. 46


18

legislature, may refer the matter to the Election Commission. This seems to be the only way to avoid the politically motivated decisions of the speakers. If the present system is to continue then the Supreme Court has to assume much broader power in terms of judicial review over the Speaker’s decision under the Anti-defection law that what the Supreme Court is prepared to do at present under the formulation in Kihota Hollohon. One aspect of the Anti-defection law needs to be pointed out. Before the commencement of the Tenth schedule a ‘political party’ was never recognized under the Constitution but now their existence is acknowledged under the Anti-defection law.

Case Analysis of the Case of Kihoto Hollohon

Recommend Documents