Supreme Court

J0udgements

JUNE 2022
ANTI DEFECTION LAW
What is SC’s ‘Kihoto
Hollohan’ Judgment?
Polity | GS2: Indian Constitution - historical underpinnings, evolution, features, amendments,
significant provisions and basic structure
Note4Students | From UPSC perspective, the following things are important :
Prelims level : Kihoto Collohan Case
Mains level : Political conundrum in states over defection
As the political battle in Maharashtra moves
to the Supreme Court, the role and powers of
the Deputy Speaker are in focus. In the context
of the crisis, references have been made to
the landmark judgment in Kihoto Hollohan vs
Zachillhu And Others (1992).
What is the Kihoto Hollohan case?
• A constitutional challenge to the Tenth
Schedule was mounted, which was settled by
the apex court in Kihoto Hollohan.
• 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.
• In this judgment, the Supreme Court
upheld the sweeping discretion available
to the Speaker in deciding cases of
disqualification of MLAs.
• The Supreme Court laid down the doctrine
of basic principle in its landmark judgment
in Kesavananda Bharati vs State Of
Kerala (1973).
What does the Tenth Schedule of the
Constitution say?
• The Tenth Schedule was inserted in the
Constitution by the Constitution (Fifty-
Second Amendment) Act, 1985.
• It provides for the disqualification of
Members of Parliament and state legislatures
who defect.
• It describes the Speakers sweeping
discretionary powers to make decisions on
case of defection.
What did the Supreme Court rule in Kihoto
Hollohan?
• The petitioners in Kihoto Hollohan argued
whether it was fair that the Speaker should
have such broad powers, given that there is
always a reasonable likelihood of bias.
• The majority judgment authored by Justices
M N Venkatachaliah and K Jayachandra
Reddy answered this question in the
affirmative. It read-
• 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 exceptionable.
• The provisions were salutory and intended to
strengthen the fabric of Indian Parliamentary
democracy by curbing unprincipled and
unethical political defections.
What was the dissenting opinion?
• Justices Lalit Mohan Sharma and J S Verma
dissented and took a different view.
• T he tenure of the Speaker, who is the
authority in the Tenth Schedule to decide
this dispute, is dependent on the continuous
support of the majority in the House.
• Therefore, he does not satisfy the
requirement of such an independent
adjudicatory authority.
• They advocated for an independent
adjudicatory machinery for resolving disputes
relating to the competence of Members of
the House,
• This is envisaged as an attribute of the
democratic system which is a basic feature of
our Constitution.
What about the role of the Deputy
Speaker?
• Article 93 of the Constitution mentions the
positions of the Speaker and Deputy Speaker
of the House of the People (Lok Sabha),
and Article 178 contains the corresponding
position for Speaker and Deputy Speaker of
the Legislative Assembly of a state.
• Maharashtra has been without a Speaker
since February 2021, and Deputy has
been carrying out the responsibilities of
the position.
• Article 95(1) says: While the office of Speaker
is vacant, the duties of the office shall be
performed by the Deputy Speaker.
• In general, the Deputy Speaker has the same
powers as the Speaker when presiding over a
sitting of the House.
• All references to the Speaker in the Rules
are deemed to be references to the Deputy
Speaker when he presides.
Try this PYQ:
Q.Which one of the following Schedules of
the Constitution of India contains provisions
regarding anti-defection?
(a) Second Schedule 
(b) Fifth Schedule 
(c) Eighth Schedule 
(d) Tenth Schedule