Anti-Defection Law: Analysis of Kihoto Hollohon vs. Zachilhu, AIR 1993 SC 412

Introduction

Kihoto Hollohan versus Zachillhu and Others alluded as the case where the constitution bench of the Supreme Court anatomized in detail the different provisions of the 52nd amendment of the constitution which embedded a new schedule expounding different provisions to shield the parties from surrender and defection. In 1985, the Constitution (Fifty-Second Amendment) Act, 1985 which is also capitally convoked as the Anti-Defection Law came into command. The amendment occurred in the year 1985 and followed by much commotion which at last prompted filing a PIL and culminating into the verdict in the year 1992 proclaiming the amendment legitimate with certain understanding in regards to judicial review.

The Anti-Defection Law

The background of the Kitoho Hollohan case can be traced back to the affected functioning of the legislature, introduction of new jargon of Aaya Ram, Gaya Ram syndrome in political parlance and 1967 elections in which Congress lost in the majority. Thus, there were large scale defections. The anti-defection law brought up numerous issues, for example, regardless of whether the law encroaches upon the privileges of the free discourse of the Members of parliament or individuals from the state legislature. Another unmistakable inquiries raised should the law just be substantial for those democratic circumstances of voting which decide the dependability of the legislature, (for example, demonstrating certainty in the wake of shaping the administration or no-certainty movement), should the last judgment on absconding is to made by the directing official, and so on.

In short, a member from the parliament will be considered incompetent if he either intentionally leaves his party or defies the orders of the party supervision on any circumstance which includes casting votes. The party members are therefore kept from casting a vote against the regulation given by the party’s whip. The stint of whip incorporates guaranteeing the participation of party individuals and teaches them to decide in favor of the party at whatever point the circumstance emerges.

Facts

In this case, numerous petitions were perceived simultaneously. So, the 10th schedule was embedded by the Constitution (52^nd Amendment) Act, 1985. The consolidated petition was planned to question and defy the Constitutional legitimacy of the Schedule presented by the Constitution (Fifty-Second Amendment) Act, 1985. These cases were reported amidst a cluster of Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions and other comparable and associated cases bringing up basic issues that were perceived simultaneously.

Four articles were changed by the Constitution (Fifty-second Amendment) Act that are 101(3)(a), 102(2), 190(3)(a) and 191(2). The common question was raised as to the constitutional validity of the constitution (52^nd Amendment) Act, 1958 as introduced in the 10^th Schedule[1] in the Indian Constitution.

“Hon’ble Justice Venkata Chaliah said that in such areas of experimental legislation what is constitutionally valid and what is constitutionally invalid is marked by a ‘hazy grey line’ and thus there is no litmus test of constitutionality. The majority proceeded to rule for the Constitutional legitimacy saying that the Constitution is adaptable to accommodate the impulses of the evolving times, that the freedom of speech of a member isn’t an outright opportunity and that the political party works on the quality of shared convictions.”[2]

It was held that the 10^th schedule does not impinge upon freedom of speech and expression or undermines the autonomous rights of the elected members and is constitutionally valid. The provision is valid regardless; the High Courts and the Supreme Court can perturb and take into consideration the judicial review under the Indian constitution. But it should not overlie any position erstwhile to give rise to a determination by the speaker.

Case Analysis

The law which has to prevail with regards to forestalling individuals defections should likewise forestall mass defections. The impersonation of the speaker likewise must be brought being referred to. The speaker relies upon the majority in the lawmaking body for his tenancy.

The Judgment in Kihoto Hollohon versus Zachillhu and Others (1992) responds to a few of the inquiries and concerns with respect to this law. While maintaining the constitutional legitimacy of this amendment, the court saw that this new law on defection tries to perceive the pragmatic need to put the decencies of political and individual lead over certain hypothetical presumptions. The court at last held that the law doesn’t abuse any privileges of free discourse or fundamental structure of the parliamentary popular government. Another significant part of this judgment is an ultimate conclusion making expert on pronouncing the absconding. The court clarified that the managing official is the one to settle on the choice and it is last dependent upon legal audit after the choice is articulated and affected.

“In Ravi S Naik v. Union of India, it was held that the words “deliberately surrendering membership” has more extensive importance. A derivation can likewise be drawn from the regulation of the member that he has deliberately surrendered the membership of his party. Rules under the Tenth Schedule are procedural. Any infringement of those eventually is a procedural inconsistency. Procedural inconsistency is safe from the legal examination.”[3]

Taking into account Articles 102 and 192, the president, if there should be an occurrence of the parliament and the representative on account of the state assembly, may allude the issue to the Election Commission. This is by all accounts the best way to stay away from the politically roused affirmations of the speakers. If the government needs to proceed with the current framework, at that point the Supreme Court needs to expect a lot more extensive force.

The significant disagreement raised by the petitioners was that para 7 in wording and in actuality realizes an adjustment in the functioning and impact of Articles 136, 226 and 227 thus drawing in The clause (2) of the Article 368 demanding sanction. “The court subscribing in to it has opined that the expressions of the para 7 are of wide import and leave no constitutional choices. The para 7 undertakes to change the impact of Articles 136, 226 and 227 of the Constitution which gives the High Courts and Supreme Court jurisdiction in such cases.”[4] Any such rule or regulation is required to be legally sanctioned and compiled by the state legislature bodies according to Article 368(2).

“In Rajendra Singh Rana and Ors. v. Swami Prasad Maurya and Ors., it was held that if the Speaker neglects to follow up on a complaint, or acknowledges claims of splits or mergers without making a declaration, he neglects to go according to the Tenth Schedule. The Court said that overlooking a petition for exclusion and disqualification is not only an inconsistency yet an infringement of established constitutional duties and obligations.”[5]

Conclusion

The Anti-defection law altered different articles of the constitution concerning vacation of the seats and preclusion from membership of the parliament and lawmaking bodies. The amendment likewise embedded another schedule (tenth schedule) to the constitution setting out different arrangements enumerating preclusion on the ground of defection. The law provides strength and solidity to the government by thwarting the movement of party allegiance. By way of interdicting the parliamentarians from changing parties, it reduces the culpability of the government to the Parliament and the citizens. It also safeguards that candidates elected with party countenance and based on party manifestoes remain dedicated to the party policies and also commend party decorum.

[1] The Constitution of India, art. 102(2), 191(2)

[2] Kihota Hollohon v. Zachilhu and Ors, AIR 1993 SC 412.

[3] AIR 1994 SC 1558

[4] The Constitution (fifty-second Amendment) Act, 1985, para 7

[5] (2007) 4 SCC 270