case analysis of the case of kihoto hollohon

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

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 and 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 integrity of the nation.1 The preamble is a modified version of the objectives

resolution of Jawaharlal Nehru which served as the foundation in the making of the

constitution. The resolution was deeply rooted in the history of our movement 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,

character and integrity, and unless healthy conventions were developed to 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 persons in abundance, and that good sense and wisdom would pervade 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, Constituent Assembly Debates, Vols. X-XII

at 933-94

1


law but in vain in terms of the 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 Hollohon v. Zachilhu and others4,

hereinafter referred to as the case, the Constitutional validity of the Tenth 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, Special Leave Petitions and other similar and connected matters raising

common questions which were all heard together. The Constitution (Fifty-second

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, Jj. At the same time as upholding the Constitutional validity of the Anti-

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 Amendment) Bill, 1985

(Bill No. 22 of 1985) cited from http://indiacode.nic.in/coiweb/amend/amend52.htm4 AIR 1993 SC 412

2


consist of the various contentions raised and urged in the case and contain a commentary

upon the majority and minority judgments on them respectively.

3


Part II: Violation of the Basic Structure

The contentions raised and urged in terms of the violation of the basic structure are:

1. Fundamental Principles of Parliamentary Democracy,

2. Freedom of Speech and

3. The right to dissent and the freedom of conscience.

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 response to this the question deliberated upon by the court is that under 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 that the Constitution is 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

reasonable restrictions. The right of a parliamentarian to the freedom of 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

4


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 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 the immunity enjoyed by the Members of Parliament under parliamentary

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 1/3 rd 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, Parliamentary Privilege: Complementary Role of the Institutions, (2006) 2

SCC (Jour) 17 Mian Bashir Ahmed v. State of J&K, AIR 1982 J&K p.26 8 Webster, New Colegiate Dictionary 742 (Indian edn. 1983) cited from J. K. Mittal, Anti-Defection Act:

Comment on its Constitutionality (1987) 3 SCC (Jour) 25`at 289 Report of the National Commission to Review the Working of the Constitution (Vol. I, March 2002) p.

168

5


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 itself to a number of elected representatives might, in

itself, lend credence and reassurance to a presumption of bona fides. 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, the arguments of the counsel sound more convincing than the 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

number of members defect their party this grand scale desertion ceases to be

desertion. But ordinarily governments are not toppled by a small number 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 place because political interests are sold for money or for promise 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 amazing that law punishes small fry but not hawks. The classification 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 MANU/SC/0101/1993 para 2111 supra note 5 at 1832

6


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 Commission all of which are higher 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

disqualifications referred to in articles 102 and 191 of the constitution, the

disqualification on grounds of defection could also be referred to the Election

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 J. K. Mittal, Anti-Defection Act: Comment on its Constitutionality (1987) 3 SCC (Jour) 25 at 2913 P. C. Jain, Chawla’s Elections Law and Practice (Bahri Brothers, Delhi, 8th edn. 2004) p. 1.704

7


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

defection law and the debates in the house which suggests that paragraph 7 was

introduced with the very purpose of barring jurisdiction. The court has differentiated the

present case from the cases of Shankari Prasad Singh Deo v. Union of India and State of

bihar14 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

jurisdiction of the Courts to operate upon. Matters are entirely different 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 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 8915 MANU/SC/0052/196416 MANU/SC/0101/1993 para 24

8


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

jurisdiction of the court must be strictly construed and thus the para 7 bars 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 for his assent in conformity with the special procedure after performance of

the conditions precedent, namely, passing of the Bill by each House by 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.”

9


Doctrine of Severability:

It was held in the case of R.M.D. Chamarbaugwalla v. Union of India,17 the Hon’ble

Supreme Court has observed:

“When a legislature whose authority is subject to limitations 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 void in its 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 striking down the offending part of the amendment and upholding the 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 court responding to this has asserted that as a settled principle of statutory

construction a proviso can have no repercussion on the interpretation of the 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 94018 Sri Kesavananda Bharti Sripadagalavaru v. State of Kerala, 1973 Supp. SCR 1; Minerva Mills Ltd. and

Ors. v. Union of India and Ors., MANU/SC/0075/1980; P. Sambhamurthy and Ors. etc v. State of Andhra

Pradesh and Anr. MANU/SC/0103/198719 Shah Bhojraj Kuverji Oil Mills and Ginning factory v. Subash Chandra Yograj Sinha, AIR 1961 SC

1596 at 1690 cited from Justice G. P. Singh, Principles of Statutory Interpretations( Wadhwa and

Company, Nagpur, fifth edn. 1992) p. 133

10


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.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

contain the provisions which are said to occur in it, you cannot derive these

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

Article 368(2) that “thereupon the Constitution shall stand amended” the operation

of the proviso should not be extended to Constitutional amendments in a Bill which

can stand by themselves without such ratification. , accordingly, the Constitution

(52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in

the Constitution of India, to the extent of its provisions 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 remaining

provisions of the Tenth Schedule can and do stand independently 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 facie and thus stands

as it was before the Constitution (Fifty second amendment) Act 1985. According to the

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

Mysore etc. 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. 13321 [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

11


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.

12


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 preeminently a judicial 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. Such an action can be ultra vires for the reason that it is in contravention

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 MANU/SC/0101/1993 para 41

13


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 order23 or the statutory authority has not acted in

conformity with the fundamental principles of natural justice24 or the decision is based on

no 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 Krishnan 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 position of the Speaker in a Parliamentary Democracy. The

Minority has asserted that there is a violation of the basic structure on clear and

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

Law(Central Law Agency, Allahabad, 4th edn. 2001) p. 36124 Srinivas v. State of A.P., AIR 1971 SC 71; Chandra Shekhar v. Bar Council of India, Rajasthan, AIR

1983 SC 1012 cited from J. J. R. Upadhaya, Administrative Law(Central Law Agency, Allahabad, 4th edn.

2001) p. 36125 Kaushaliya Devi v. Bachittar Singh, AIR 1960 SC 1168 cited from J. J. R. Upadhaya, Administrative

Law(Central Law Agency, Allahabad, 4th edn. 2001) p. 36126 Dhula Bhai v. State of M.P., AIR 1969 SC 78 cited from J. J. R. Upadhaya, Administrative Law(Central

Law Agency, Allahabad, 4th edn. 2001) p. 36127 AIR 1963 SC 1547

14


unambiguous terms as there is no independent body to adjudicate over an electoral

dispute. The majority has extolled the position of a Speaker and thus rather

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

15


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

the case (Kihota) that the speaker depends continuously on the majority support of the

house, therefore if a member defects from a smaller party to a bigger party, the Speaker

belongs to the bigger party, an impartial adjudication on the defecting members’

ddisqualification becomes extremely improbable. There has been a suspicion 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

expelled by the party for any reason. He thus becomes an ‘unattached’ member. I

thereafter he joins another political party, will he incur disqualification under the Tenth

Schedule. The Supreme Court has answered the question in affirmative. The 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

16


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 being argued that the law which has succeeded in preventing individual

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 Kihota Hollohon, the speaker

depends for his tenure on the majority in the legislature. He does not satisfy the

requirement of an ‘individual adjudicatory body’. Subsequent event in the various

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 situation can be rectified and the Anti-Defection law made more effective, 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, Indian Constitutional Law( Wadhwa publishers, Nagpur, 5th edn. 2005) p. 46

17


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.

18

case analysis of the case of kihoto hollohon

Documents