Kihoto Hollohan case referred as the case where the constitution bench of the Supreme Court analyzed in detail the various provisions of the 52nd amendment of the constitution which inserted Tenth schedule. 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).
The Supreme Court ruled that 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
Incidents like that in Karnataka has raised various questions wrt Anti Defection law and role of Speaker-
It has raised the question of whether one should link or delink resignation with disqualification.
o The situation is that a resignation has been tendered and there is a disqualification proceeding that is also initiated.
o The Speaker is in a fix, that is, whether to take a call on disqualification first, as a consequence of which, resignation becomes redundant or accept the resignation first, in which case perhaps the disqualification may become redundant.
The incident calls for an interpretation of the three provisions of the Constitution: Article 190 (vacation of seats), Article 164 (1B), and the X th schedule of the Constitution.
o The Speaker has the power to not accept resignation if s/he comes to the conclusion that there are grounds to believe that the resignation is a consequence of coercion or any other kind of undue influence or inducement. Inducement could also mean some kind of
o If the Speaker comes to a conclusion that resignation is effectively connected and linked to the aspect of defection, then perhaps that particular resignation can be kept on hold and it need not be accepted.
The defection is happening due to the lure of money and ministerial offices.
The decision to resign before disqualification is taken because it allows one to become a minister in the current House otherwise one cannot become a minister in the current House until one’s re-election or the expiry of term, whichever is earlier.
A troubling situation has emerged in Andhra Pradesh and Telangana. For instance, as of date, 27 legislators are alleged to have defected from various parties to the ruling Telangana Rashtra Samiti (TRS) since 2014. The speaker has not taken any decision on the
disqualification petitions filed against these MLAs.
The question that “does the Tenth Schedule, in its present form, strike the right balance between the freedoms of the legislator and the need for respecting democratic mandates and processes?” has emerged again.
The words ‘voluntarily giving up membership of a political party’ should be comprehensively defined.
According to 2 nd ARC, decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.
According to law commission, provisions which exempt splits and mergers from disqualification should be deleted.
Disqualification should be limited to cases where:
o a member voluntarily gives up the membership of his political party,
o a member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence.
The vote cast by a defector to topple a government should be treated as invalid.
There is a need to provide the Speaker with a timeline i.e. providing him/ her specified number of days for reviewing a resignation.
The Speaker needs to strike a distinction between bonafide political reasons and malafide political reasons.
It is not feasible to completely repeal the Anti-defection law, it should be amended appropriately, but the long term solution lies in checking the political culture and the legislators who act in unscrupulous ways should be voted out in subsequent elections, as the ultimate sovereignty lies with the people of India.