Anti Defection Law

The Kihoto Hollohan Judgment and its Significance

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Highlights of the Judgment

Mains level : Issues over Speaker's discretion in Anti-defection

The 28 YO Kihoto Hollohan judgment has found its relevance in the case of ousted Rajasthan Dy. CM and some MLAs who were issued a notice under the anti-defection law.

Try this question from CSP 2019:

Q.The Ninth Schedule was introduced in the Constitution of India during the prime-ministership of:

(a) Jawaharlal Nehru

(b) Lal Bahadur Shastri

(c) Indira Gandhi

(d) Morarji Desai

Under debate: Speaker’s power

  • The power for this disqualification is vested in the Speaker, who is usually a nominee of the ruling party.
  • Since no action was taken by the Speaker on the disqualification petitions, a writ petition was filed before the High Court of Manipur in Imphal seeking directions to decide on the petition.
  • However, the court did not pass an order.
  • It said that the larger issue of whether a High Court can direct a Speaker to decide a disqualification petition within a certain timeframe is pending before a Constitution Bench of the Supreme Court.
  • The parties are left with the option to move the apex court or wait for the outcome of the cases pending before it.

The Kihoto Hollohan Judgment

  • The 1992 judgment of the Supreme Court in the Kihoto Hollohan versus Zachillu and Others has said that “judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman.
  • Nor would interference be permissible at an interlocutory stage of the proceedings said the Supreme Court.
  • The only exception for any interlocutory interference can be cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.

Free speech

  • The ruling party in Rajasthan has challenged the constitutionality of Paragraph 2(1)(a) of the Tenth Schedule which makes “voluntarily giving up membership of a political party” liable for disqualification.
  • The MLAs have said the provision infringes into their right to express dissent and is a violation of their fundamental right to free speech as a legislator.
  • The Rajasthan HC Bench explained that the reason for limiting the role of courts in ongoing defection proceedings is that the “office of the Speaker is held in the highest respect and esteem in parliamentary traditions.

Exceptions to the Kihoto Judgment

  • The judgment had said that even the scope of judicial review against an order of a Speaker or Chairman in anti-defection proceedings would be confined to jurisdictional errors.
  • That is if its infirmities are based on a violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.

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Explained: Anti-defection law and its evolution

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