What is SC’s ‘KihotoHollohan’ judgment, and why is it relevant in the context of the crisis in Maharashtra?
- June 28, 2022
- Posted by: OptimizeIAS Team
- Category: DPN Topics
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What is SC’s ‘KihotoHollohan’ judgment, and why is it relevant in the context of the crisis in Maharashtra?
Context: the top court gave the 16 rebel Shiv Sena MLAs until July 12 to respond to the disqualification notice issued by the Deputy Speaker
What does the Tenth Schedule of the Constitution say?
- It 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
- A member of a House belonging to any political party shall be disqualified from being a member of the House
- if he has voluntarily given up his membership of such political party
- if he votes or abstains from voting in such House contrary to any direction issued by the political party without obtaining prior permission
- If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or the Speaker of such House and his decision shall be final
What is the 2/3rds rule in anti-defection law?
- The act allows a group of MP/MLAs to join (i.e. merge with) another political party without inviting the penalty for defection. And it does not penalise political parties for encouraging or accepting defecting legislators
- As per the 1985 Act, a ‘defection’ by one-third of the elected members of a political party was considered a ‘merger’
- But the91st Constitutional Amendment Act, 2003, changed this and now at least two-thirds of the members of a party have to be in favour of a “merger” for it to have validity in the eyes of the law
What did the Supreme Court rule in ‘KihotoHollohan’?
- 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 petitioners in ‘KihotoHollohan’ 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 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 exceptionable
- The judgment said that the Schedule’s provisions were “salutory and intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections